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MISCELLANEOUS WRITINGS 



OF THE LATE 



HON. JOSEPH P. BRADLEY, 

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 

STATES, WITH A SKETCH OF HIS LIFE BY HIS SON, 

CHARLES BRADLEY, A.M. 



REVIEW OF HIS ''JUDICIAL RECORD," 



WILLIAM DRAPER LEWIS, 

EDITOR OF THE "AMERICAN LAW REGISTER AND REVIEW, 
OF PHILADELPHIA, PA., 



AN ACCOUNT OF HIS " DISSENTING OPINIONS," 



BY THE LATE 



A. Q. KEASBEY, Esq., OF NEWARK, N. J. 



EDITED AND COMPILED BV HIS SOIJ, , , , , , 

CHARLES BRADLEY. 



NEWARK, N. J.: 
L. J. Hardham, 243-5 Market Street. 

1902 






THE LIBRARY OF 
CONGRESS, 

Two CopiKS Received 

MAY. IS t902 

COPVRIQVT ENTRY 

CLASSCUXXa No. 
COPY B. 



COPYRIGHT 1901 BY CHARLES BRADLEY. 



CONTENTS. 



Frontispiece. 

Preface, ..... 

Biography, .,..„.. 

Judicial Record, ...... 

Dissenting Opinions, ..... 

The Legal Tender Cases in 1870, and a "Statement 
of Facts" in Relation Thereto, by the Ma- 
jority OF the United States Supreme Court 
at That Time, ...... 

Personal, Political, Historical and Philosophical. 
Essays, Letters and Historical Notes. 
Aaron Burr, .... 

A Love Letter, .... 

Admission to the Bar, . 
A Picture, ..... 
Translation of Lucan's Eulogy on Pompey, 
To My Sister Mary, .... 
Dreamland, .... 

The Marital Relation, 
Rutgers Alumni Dinner, 
Equality, ..... 

Political Economy, 

Fenianism, ..... 
Political Expressions, 
The Constitutional Amendment [XIII], 
Opinions in The Electoral Commission, 1877 
Electoral Commission, 
Electoral Commission — Reply to Charges, 
Electoral Commission, 
Lecture on Law, 
Organization of the United States Circuit Court of Appeal 
for the Third Circuit, "... 



PAGE. 

vii-xii 
I 



15 
33 



45 



77 
78 

79 
80 

82 

83 

84 

86 

88 

90 

93 

95 

97 

151 

165 

217 

220 

22"^ 

225 

267 



IV 



CONTENTS. 






PAGE. 


Thomas Hobbes, .... 


283 


Age of Egyptian Civilization, 


. 285 


Macaulay, ..... 


286 


History, ...... 


. 287 


Carlyle's " French Revolution," 


290 


Stowe, ...... 


. 292 


History of Washington Park, Newark, N. J., 


294 


Truth, ...... 


298 


Variety of Intellectual Capacities, 


299 


Will: Self-Control, . . . . . 


300 


Experience, or Self-Improvement, 


301 


Principles Should Be Fixed, 


• 303 


Family Happiness, .... 


305 


Home, Defined, . . . . . 


• 305 


Happiness, ..... 


306 


Time, ...... 


. 308 


The Teaching of Children, 


310 


Fit Expressions, . . . . . 


• 311 


Eloquence, ..... 


313 


Style, ...... 


. 314 


Metaphysics, ..... 


316 


Upham on the Mind and its Disorders, 


. 318 


The Human Mind, .... 


321 


The English Guttural U, . 


322 


Er, By, Neah, ..... 


323 


Freedom of Thought, . . . . 


. 324 



Astronomical, Scientific and Mathematical. 
" Studies," Letters, S^c. 

The First Steam Engine in America, . . . 329 

Easter Day and Court Terms, .... 331 

Perpetual Calendar, ..... 333 

Table for Finding Mean Time of New Moon, . . 334 

New Calendar Proposed, .... 335 

Letter to the Secretary of the Treasury, . . . 341 

Recurrence of Ice Periods in the Northern Hemisphere, 346 

Standard of Weights and Measures, . . . 347 

The Force of Water as Used in Hydraulic Machinery in 

Mining, ...... 350 



CONTENTS. 

Religious and Moral. 
Essays and Letters. 
Religion in the Constitution, 
Christianity — Its Immortality, 
Noah's Ark, 
The Moral Faculty, 
Precepi and Example, 
Example, • . . » 

Reformers, .... 
The Lord's Prayer, 
The Bible, .... 
Translations, .... 

The English Translation of the Bible — I, 

II. 
The Old English Bible. 
Easter Day, .... 

The World is not Eternal, . 
Year and Day of Christ's Crucifixion. . 
The Date of the Crucifixion, 
Day of the Crucifixion, 
Inspiration, .... 
Letter to Amzi Dodd, 
Inerrant or Infallible Bible, 
Sermons, .... 

Religious Forms, 

Danger of Abrogating Religious Forms, 
The Sabbath and Sunday, 
On the Existence of a God, 
Esoteric Thoughts on Religion and Religionism 





V 


PAGE. 


• 357 


359 


360 


361 


. 364 




366 




• 367 




368 




• 370 




372 




• 373 




376 




• 378 




382 




. 383 




386 




• 394 




395 




• 398 




400 




401 




402 




• 403 




405 




• 407 




422 


nism, . 


• 423 



PREFACE. 

The death of my father, Joseph P. Bradley, on 
January 22, 1892, placed in m}^ hands as his sole 
executor, all his papers and MSS., a large and varied 
collection. Appreciating its value and importance, I 
have been engaged for some years in examining and 
arranging it in convenient form, and after submission 
to several distinguished and learned friends of my 
father, I have, at their ea.mest solicitation, under- 
taken to gather together those heretofore unpublished 
and unspoken thoughts of his, which he habitually 
wrote down in all manner of memoranda, record and 
common-place books, as they became settled convic- 
tions of his mind.* 

To these I have added such public addresses and 
lectures as seem pertinent to such a collection. But I 
have endeavored to eliminate all strictly legal sub- 
jects,! except the lecture before the law students of 
the University of Pennsylvania, it being the purpose 
of this volume to record in a permanent way his ac- 
quisitions in other departments of thought than the 
law. His legal reputation will be judged by his opin- 



* See essay, "Experience or Self Improvement." 
t See note to Preface. 



Vlll PREFACE. 

ions from 9th Wallace to 141st United States, which, 
in the language of Chief Justice Fuller, " constitute a 
repository of statesinan-like views and of enlightened 
rules in the administration of justice, resting upon the 
eternal princijDles of right and Avrong, which will 
never pass into oblivion." 

In presenting these thoughts of Mr. Justice Bradlc}', 
it should be borne in mind, therefore, that they include 
only such as are appropriate to a collection of miscel- 
lanies. Much, probably three-quarters, of the time 
occupied in studies distinct from those incident to the 
prosecution of his profession, was devoted to mathe- 
matics, his favorite subject, and the results of his 
thoughts and work in that department of science are 
found recorded in luany places, whole blank books 
being filled and reams of paper covered ^vith solutions 
and discussions of various problems, indicating pro- 
found knowledge of and familiarity Vv'itli the principles 
of astronomical, geometrical and physical mathe- 
matics. But the very nature of the work is such as 
to preclude its introduction into these pages. Still 
certain entries in his "Records" have seemed worthy 
of preservation, if not for tlieir own novelty, at least 
as an index to this phase of the mental acquirements 
of this inany-sided man. 

That these studies v^-ere not superficial, but deep 
and thorough, is evidenced bv an examination of his 



PREFACE. ix 

correspondence, in whicli is found the letters of expert 
engineers, practical meclianics and even college profes- 
sors, soliciting his advice and his judgment on mechan- 
ical and scientific devices and methods. 

It is evidenced, also, as applied in his dissection of 
complicated patent litigation befoi'c the Supreme 
Court of the United States, in which his pre-eminence 
has been so forciblv maintained bv that leader amono: 
great American patent lawyers, Mr. George Harding, 
of Philadelphia, who says : "In that branch of law 
(patent), as a judge, he has never been surpassed, if 
he has been equalled. No matter what department of 
the arts was involved, mechanics, chemistr)% electricity 
or steam engineering, he mastered the subject." 

Still another subject to which he devoted much 
time and labor was genealogy.* To a complete his- 
tory of his owm famih^, v^ith all its ramifications in 
this countr}^, involving a large correspondence and 
personal inspection of old town records and docu- 
ments in Connecticut, he added the compiling of the 
histor)' of his wife's family and connections (Horn- 
blowers, Burnets, Gouvemeurs, etc.), besides the records 
of many collateral branches, all duly preserved in 
MSS., necessitating that manual and mental labor 
and application that so astonished those "who only 
knew him by his work as lawyer and judge. As his 



* The Bradley Family of Fairfield." Published privately in. Newark^ 
N. J., lS9-i. 



X PREFACE. 

friend and eulogist, Hon. Cortlandt Parker, says : "I 
am free to sa}' that it lias not ever happened to me to 
meet a man informed on so man}- subjects entirely- 
foreign to his profession, and informed not slightly or 
passably, but deeply — as it seemed, thoroughly on 
them all. Literature, solid or light, in poetry or 
prose ; science ; art ; history^, ancient and modem ; 
political economy ; hieroglyphics ; modem languages, 
studied that he might acquaint himself with great 
authors in their own tongues ; the Hebrew and kindred 
tongues, that he might perfect himself in biblical stud}^; 
mathematics, in knowledge of which he Tvas excelled 
by few — all these were constantly subjects of his 
study." 

It was this all-absorbing thirst for knowledge, this 
determination to master and digest whatever subject 
came under his observation, that forced him to devote 
his every hour to some new acquisition, and jet with- 
out detriment to his reputation and obligations as 
an occupant of that great and laborious office which 
he held. It is fortunate that he has left us some 
monuments of all that study, of that great intellect. 
Posterity^ may justly accord him that niche in the 
history of the Supreme Court to which he is entitled. 
This record will preserv^e in some small degree the 
results of those hours of midnight toil— though to him 
a pleasure — which only his family knew of, and which 
it would be criminal to consign to the waste-paper 
basket. 



PREFACE. XI 

Previous to Mr. Justice Bradley's ascending the 
Bench in 1870, he had for thirty years practiced law 
in Newark, N. J. While thus prosecuting his profes- 
sion, he was not neglecting his duties as a citizen or 
refusing the benefit of his wide influence and know- 
ledge to religious, educational and philanthropical 
organizations or objects. On the contrary, he was 
an active participant, as officer or director, in financial 
or other business corporations, and the frequent ad- 
viser in the affairs of educational institutions, as 
trustee or otherwise. Always pronounced, but not 
extreme in his views, he was called on to address his 
fellov\r-citizens v^henever the necessities of the emer- 
gency seemed to require the peculiarly forceful and 
thoughtful presentation of a serious public question, 
with vt^hich his speeches are imbued. 

We have, therefore, included some few of these 
addresses, as an illustration of that force which made 
him a power in the community. Then, turning to 
another mental characteristic, we present some speci- 
mens of his religious and philosophical essays and 
discourses — a department in which he was most happy 
in conveying his ideas to an audience, imparting life 
and interest to an otherwise heavy stibject. With 
these there are intermingled certain miscellaneous say- 
ings, exhibiting the versatilit}^ of his mind and accom- 
plishments. In truth, he v^-as the personification of 



Xll PREFACE. 

Bacon's famous epigram : " Reading maketh a full 
man ; conference, a ready man, and writing, an exact 
man." 

I also include in these pages the secret history of 
the conferences of the U. S. Supreme Court, in the 
form af a "Statement of Facts," signed by the major- 
ity of the Court, relating to the re-hearing and final 
decision of the "Legal Tender" cases, in 1870. This 
document, now published for the first time, should 
emphatically dispose for all time of the erroneous and 
unjust aspersions cast by some A^riters and publicists 
upon the honor and action of the Court at that time. 

CHARLES BRADLEY. 
Newark, N. J., 1900. 



Note. — Further reflection has produced the conviction that two papers 
on the judicial career of Mr. Justice Bradley could be appropriately inserted 
in these pages, and it is with undisguised pleasure that I have introduced 
them at the beginning of the volume. 

The first, entitled "The Work of Mr. Justice Bradley," by William 
Draper Le^vis, Associate Editor of The American Law Register and Review, 
of Philadelphia, Pa., and the second, "Dissenting Opinions — Mr. Justice 
Bradley," by A. Q. Keasbey, of Newark, N. J. 

To both of these gentlemen — the latter having since passed away — 1 
publicly acknowledge the deep sense of my obligations and gratitude. 



JOSEPH P. BRADLEY. 



Joseph P. Bradley was bom March 14, 1813, at 
Berne, Albany County, N. Y. His ancestors for gener- 
ations had been farmers and, his father, Philo Bradley, 
followed in their footsteps. Hence his early years 
were passed in the laborious but healthful duties of a 
farmer's son. His early schooling consisted of a few 
months in the winter of each year at the country 
school-house, but his natural aptitude for learning 
soon exhibited itself so strongly that the attention of 
the Reformed Dutch minister of the parish w^as attrac- 
ted to him, and through his instrumentality he was 
afforded the assistance of the church in obtaining a 
college education. After a short period spent in teach- 
ing school for the purpose of raising a little money, 
and under the tutelage of Mr. Myers, the minister 
above referred to, he prepared for entering Rutgers 
College, an institution identified with the Dutch 
Church, at New Brunswick, N. J. Joining the freshman 
class in September, 1833, he soon found himself able 
to enter the class above, and hence became a member 
of the famous class of 1836. 

After graduation he secured the position of Prin- 
cipal of the Millstone, N. J., Academy, but not long 
after he was persuaded by two of his class-mates — 
Frederick T. Frelinghuysen and Cortland t Parker— to 
go to Newark, N. J., where they resided, and accept a 
position in the office of Mr. Archer Gilford, a leading 
lawyer and at the time Collector of the Port. Arriv- 
ing in Newark, November 2, 1836, he immediately 



2 MISCELLANEOUS WRITINGS. 

entered Mr. Gifford's office and began the study of 
law. The salary of his office as Inspector of Customs 
was sufficient to defray his expenses until his admis- 
sion to the Bar, in November, 1839. In May, 184-0, 
he formed a business connection with Mr. John P. 
Jackson, and from that time he had constant employ- 
ment in his profession. 

Marr^ang in October, 1844, Mary, the youngest 
daughter of the late Chief Justice Homblower, of New 
Jersey, his home became the centre of a wide circle of 
friends. 

Devoting himself assiduously to his profession, his 
ability and force soon made themselves felt and his 
services were sought after by the most powerful 
private and corporate interests of the State, until he 
became, admittedly, the leader of the Bar in New 
Jersey, and through his frequent appearance in the 
courts of the United States, earned even a wider, if 
not a national reputation. 

The opportunity presenting itself, President Grant's 
attention w^as called to his pre-eminent fitness for the 
vacancy then existing on the Bench of the Supreme 
Court of the United States, and on February 7, 1870, 
he nominated him as an Associate Justice of that 
court, and his nomination w^as confirmed by the 
United States Senate, March 21, 1870. 

At the mature age of 57 years, and after thirty 
years of active and continued pursuit of his profession, 
leavened with intellectual diversions in almost every 
scholarly path, broadened by foreign travel and in 
robust health, he was singularly well prepared for the 
burdens of his office and the discharge of its duties 
and responsibilities. 



BIOGRAPHY. 3 

It was fortunate that it \Yas so, lor his associates, 
with \vhom he must cross swords in judicial confer- 
ence, were concededly distinguished for their ability 
and reputation. Salmon P. Chase — then Chief Justice 
— Noah H. Swajne, Samuel Nelson, Nathan Clifford, 
David Davis, Samuel F. Miller and Stephen J. Field, 
all tested in the crucible of public life and experience — 
these were the men on whom he must impress the 
stamp of his power and force, or sink into judicial 
obscurity. That they were " foemen worthy of his 
steel," he was proud to acknowledge. That he ob- 
tained their recognition as a peer his, "Judicial Record" 
demonstrated. And the questions quickly coming 
before the Court, as the result of the war and recon- 
struction periods, soon gave him the opportunity to 
establish his position on the Bench — a status never 
after questioned, even amid the changing personnel of 
the court. 

Immediatel}^ removing from Newark, he purchased 
the large residence, No. 201 I Street, built by Stephen 
A. Douglas and occupied by him till his, death. Here 
he lived for twenty-two years, dispensing a generous 
hospitality^ and enjoying, when opportunity permitted, 
the social life of the Capital. Many old friends sur- 
rounded him. In the Executive Department of the 
Government, George M. Robeson, Secretary of the 
Navy, was an intimate and welcome guest at his 
house. In the Legislative Department w^ere Senators 
John P. Stockton and Frederick T. Frelinghuysen, 
both old friends and contemporaries at the Jersey Bar, 
w^hile the latter, more than a friend, had been his 
companion since college da^^s. Thus, he and his family 
w^ere soon at home in Washington and quickly became 
identified with its interests and life. 



4 MISCELLANEOUS WRITINGS. 

The circuit allotted to him, the fifth, embracing all 
the Southern States, except the Virginias and Caro- 
linas, necessitated his holding Court in their principal 
cities every spring, and the long journeys in warm 
weather were a severe tax on his strength. Notwith- 
standing, for ten years (until his circuit was changed), 
he never failed every j^ear to visit and hold Court in 
either Galveston, San Antonio, Houston and Dallas, 
Texas ; New Orleans, Jackson, Mobile, Jacksonville, 
Savannah or Atlanta, usually alternating yearly be- 
tw^een the Texas cities and New Orleans, and the 
others named. 

' Of course, the labor incident to this circuit w^ork 
was ver}^ great, but his previous knowledge of the 
Civil Law, and French and Spanish jurisprudence, 
enabled him to dispatch it rapidly, and as he had 
reason to know, to the great satisfaction of the 
Southern Bar. This large jurisdiction widened his 
acquaintance and was the means of creating many 
warm friendships. In fact the universal courtesy 
which was extended to him by the citizens of the 
South, was a source of great gratification to him, and 
he was profuse (in the family circle) in his expressions 
of gratitude to the gentlemen who invariably enter- 
tained him at their houses. This was especially pleas- 
ing in view of his well-known Northern antecedents 
and opinions, and the writer has personal knowledge 
of his keen regrets, when his assignment to the Third 
Circuit became proper.- 

For fifteen years or more, he spent his summers at 
Stowe, Vermont — a small village situated in the heart 
of the Green Mountains — the climate of which was 
most healthful and invigorating, and he became de- 



BIOGRAPHY. 5 

Yotedly attached to it. Generally going North late in 
June, he would pay short visits to his sons in Newark, 
and his daughter in Paterson, N. J., and then stopping 
at " The Kaaterskill " in the Catskills, where he 
enjoyed, especially, the companionship of his friend 
George Harding, of Philadelphia, he would make his 
way to Sto\ve and remain till October, returning 
directly to Washington to be present at the opening 
of the Fall Term of Court. At Stowe it was that 
he had time and leisure to pursue so man}^ of his favor- 
ite studies, and indulge his literar\^ taste to the full. 
Taking with him his choice books, he surrounded him- 
self with the atmosphere of literature, and to my 
mind, passed the happiest daj-s of his later life. 

Always a great reader and lover of books. Judge 
Bradley had early accumulated a large and varied 
librar)% embracing nearV every department of litera- 
ture, which was a source of continual pleasure and 
pride to him. By constant additions, this library be- 
came very great, numbering abotit six thousand vol- 
umes. In addition, his law librarj-, aggregating some 
ten thousand volumes, filled his home to over-flowing. 
It is interesting to know that this law library' was 
secured by the Prudential Insurance Company, of 
Newark, N. J., and is maintained complete and entire, 
even to the pictures on the Avails, in that companj^'s 
magnificent structure in that city, erected on land 
owned by Judge Bradley for many years, and sold to 
it three years before his death. 

Socially, Judge Bradley was a charming compan- 
ion and notwithstanding the inroads on his time, 
enjoyed the refined surroundings of his position. Thus 
ofiicially and personally brought into contact with 



6 MISCELLANEOUS WRITINGS. 

men distinguished in the various pursuits of life, his 
social life was most interesting. A characteristic 
habit consisted of his drawing a diagram of the table, 
immediately on his return from a dinner, with the 
names and seats of all the guests, adding a descriptive 
line, explanatory of the occasion, and pasting these 
cards in a book, which the writer now possesses, 
embracing a record of one hundred and eighty-nine 
dinners and including, of course, only formal entertain- 
ments. This unique collection, covering a period of 
twenty years, gives an idea of his social surroundings,, 
now interesting to peruse. Of course, the judicial 
element prevails in the guests at most of the boards, 
and varies with the changed personnel of the Court 
and Bar of the countr\^ during that period, as w^ell as 
the White House circles under five administrations — 
Grant, Hayes, Arthur, Cleveland and Harrison. And 
interspersed with distinguished diplomatic, army and 
naval names, are those of many known throughout the 
Avorld for their political, scientific or literary achieve- 
ments. Here we see him seated next to George Ban- 
croft, Lord Houghton, Lord Coleridge ; there, at the 
same board with Archdeacon Farrar, Dr. Oliver W. 
Holmes, James Russell Lowell and Lord Herschell ; 
again, the guests include Robert C. Winthrop and 
Mr. JoscjdIi Chamberlain. And so on, either at his 
own table or as the guest of others. Such were the 
character of the men whom he met and talked with, 
and with his receptive mind the v^ealth and variety of 
information absorbed can be better imagined than 
described. And thus his life, though laborious to a 
degree, moved pleasantly along, with two celebrated 
exceptions. 



BIOGRAPHY. 7 

Those were occasions ^Yhicll tested tlie metal that 
Tvas in him, and his character stood the strain with- 
out developing a flaw. I refer to the Legal Tender 
Decision and the Electoral Commission. Subjected to 
the most unjust and cruel criticism, charged by ignor- 
ant journalists with almost every crime in the calen- 
dar, his nervous and sensitive nature suflfered acutely. 
But the independent and self-reliant forces of his 
character — which had made him what he was — now- 
stood him in good stead, and conscious of the recti- 
tude of his motives and wath a firm faith in the 
correctness of his official opinions and acts, he cour- 
ageously faced all detraction, all threats, all denunci- 
ation, and stood like a rock against the impotent 
assaults of enraged and disappointed partisans. 

The recent death of Mr. Justice Field, ^lo was his 
colleague on the Supreme Court Bench at the time, 
releases me from a silence imposed by Judge Bradley 
and Judge Strong, and enables me to introduce in 
these pages a "Statement of Facts" relating to the 
order of the Supreme Court of the United States for a 
re-argument of the Legal Tender question in April, 
1870, prepared by the majority of the Court at that 
time — which is an absolute refutation of the unjust 
imputations cast upon his action in that matter by 
many writers,* soine of whom were inspired by par- 
tisan antipathy and others by ignorance of the facts, 
and which have gained currency by reason of their 
long exemption from challenge. As introductory to 



* "The life of S. P. Chase." by J. W. Shuckers, Chapter XXVIII. 

Paul Leicester Ford's edition, "The Federalist." Introduction, p 
XVIII. 

"Congressional Government," by Woodrow Wilson. Introductory, p- 
XXXVIII. 



8 MISCELLANEOUS WRITINGS. 

the "Statement" I have, with the author's consent, 
quoted largely from a letter of Senator George F. 
Hoar, of Massachussetts, refuting the charge that 
President Grant had, by the appointment of Judges 
Bradley and Strong, " packed " the Supreme Court for 
the purpose of securing the reversal of the Court's 
decision in the case of Hepburn vs. Griswold, other- 
wise knowm as the " Legal Tender " case. 

The second occasion referred to — the Electoral 
Commission — is briefly touched on by himself in the 
accompanying volume. But his account gives little 
idea of the bitterness of feeling then existing, and the 
severe ordeal through which he passed and of which I 
have personal knowledge. Having attended the Col- 
umbian Law School, in Washington, during the winter 
of 1S76 and 1877, I was fulK- aware of the suppressed 

Note. — Prof. Woodrow Wilson, having had his attention called, 
by the editor, to the inaccuracy of his statement, wrote the following 
very manly and satisfactory acknowledgment : 

Princeton, N. J., December 20, 1900. 
Mr. Charles Bradley, Newark, N. J.: 

My Dear Sir: — I very much appreciate your letter of the six- 
teenth. I have for some time been convinced of the unfair imputa- 
tions of the passage to which you refer in my "Congressional 
Government," but I have never had an opportunity of revising the 
text since its publication. It has many times been reprinted, but no 
change has been made in any part of it since its original appearance. 
Stereotyped plates are regarded by publishers as a very rigid finality. 
The change necessary in that passage would be very considerable, 
and I have never had a chance to make it. I very much hope that 
before very long I shall be allowed to revise at least that part. 

Thanking you again for thus taking it for granted that I wished 
to know and speak the truth, 

Very sincerely yours, 

Woodrow Wilson. 



BIOGRAPHY. 9 

excitement which pervaded all classes, and when 
finally my father was chosen to complete the organiz- 
ation of the commission, he, as well as all of his 
family, keenly regretted that the lot had fallen to him, 
thereby becoming (unjustly), in a sense, the final 
arbiter. I say unjustly because he was by belief, by 
association, by past history, as staunch a Republican 
as any of those members of the Commission who 
-were deliberately selected by reason of their known 
political predilections. And yet, he alone was expected 
to sink all political bias and act the judge mereh'. 
He realized fully the delicate position he occupied, and 
foresaw^ that whatever course he took w^ould subject 
him to criticism. But that he would be assailed with 
all the venom of a serpent, that he would be charged 
openly ^^nih. corruption, that he would be threatened 
with bodily injury, aye, even to the taking of his life — 
this he did not forsee nor believe possible. And yet 
such Avas the case. As tlie proceedings of the commis- 
sion advanced and the probable outcome was seen, 
the fury of the Democratic press, led by that scorpion 
of journalism, the New York Sun, knew no bounds. 
And this continued vilification soon affected the excit- 
able minds of irresponsible individuals, until he was 
inundated by a flood of vulgar and threatening com- 
munications which would have unner\"ed a less brave 
and courageous man. 

He soon ceased to either read the press or his mail 
and absolutely declined to see or converse with the 
horde of callers at his house. As a matter of fact, he 
was practically a hermit from the hour he left the 
sittings of the commission one day until it met the 
next, even his family seeing him onlj^ at meals. As 



10 MISCELLANEOUS WRITINGS. 

an inmate of his house during the whole period of the 
commission's existence, I speak wath authority when 
I say that the reports of his consultations with prom- 
inent Republicans and members of the commission are 
false — false not only as to the fact, but the inferences 
w'hich have been drawn from these false reports, and 
especially that venomous statement that he had read 
an opinion favorable to Mr. Tilden in the Oregon case 
to one or two of his Democratic associates, but that 
over-night he had been closeted wath Republican mag- 
nates and came into Court in the morning and voted 
and read an opinion in favor of Mr. Hayes. This 
statement having been credited to Judge Field, \vliether 
correctly or not, he called upon that judge to either 
prove it or retract it. Judge Field, then in California, 
wrote him saying that his remarks had been misinter- 
preted and exaggerated, and that he had said "noth- 
ing derogatory to his honor or integrity." 

That he gave the most conscientious consideration 
to every point raised, and that his conclusions w^ere 
irresistibly correct, is best evidenced by his opinions 
elsewhere printed in this volume. That he exhibited 
a courage not surpassed b}^ any battle-field hero can 
only be appreciated by those v^^ho knew personally 
the bitterness of the time. That the threats against 
his life were not idle, and that the anxiety of his 
family for his personal safety was not exaggerated, 
became evident when we found that detectives, with- 
out solicitation or his knowledge, had been detailed 
by the then Secretary of the Navy to guard his house 
and his person. Fearless in the execution of the trust 
reposed in him, he had the satisfaction of living long 
enough to see his conduct approved by all fair-minded 



BIOGRAPHY, 11 

men and receive the sanction of popular opinion in 
the condemnation of Mr. Tilden's "cypher despatch" 
methods and that gentleman's permanent retirement 
to private life. But amongst the many evidences of 
endorsement received by him from all over the country^ 
none appealed to him more than a testimonial of 
confidence and approval tendered him by the leading 
professional and business men of his old home — 
Newark, N. J. (Note). Blessed with great vigor of 
body and mind, he rounded out his long career Avith 
fullness and satisfaction, ever growing in judicial 
strength and reputation. 

The death of his eldest son, William H. Bradley, in 
1889, at the time an active lawyer in his old home 
at Newark, N. J., was a great blow, but he showed 
no weakening of his powers until in the spring of 
1891, when an attack of " la grippe " left him much 
enfeebled. He failed to recuperate his strength that 
summer and returned to Washington in October much 
debilitated. He took his seat on the Bench, however, 
at the opening of Court, but in a few -weeks was 
compelled to retire b}^ a general breaking up of his 
system. Fully realizing his approaching end, he 
calmly prepared himself and his affairs for the inevit- 
able, and finall}^, peacefully passed away early on the 
morning of January 22, 1892, surrounded by all his 
family. Had he lived till March 14, he would have 
been 79 years old. 

A man of the strongest personality — of deep feeling, 
tho' undemonstrative — his friendships were sincere and 
binding, and his family relations were most delightful. 

And so ended a useful Christian life. May we 
emulate his sterling w^orth and character and strive 
to make as good an American citizen. 



12 BIOGRAPHY. 

(Note.) 

"Newark, N. J., March 7, 1877. 

"Hon. Joseph P. Bradley, 

"Justice U. S. Supreme Court. 

"Dear Sir: — Your friends and neighbors in this community 
have given you their sincere sympathy in your discharge of the duties 
imposed upon you as the arbiter of the Electoral Commission. 

"No weightier responsibility was ever incurred by any citizen 
than rested upon your casting vote, but your course has been watched 
by us with more of affectionate interest than of anxiety. 

" We had a life-long assurance that whatever of so-called polit- 
ical bias you might make manifest would be only the expression of 
deep-rooted convictions of the true interpretations of the Constitu- 
tion and of devotion to republican government in its essence and 
purity. 

"We offer you our heart-felt congratulations, mostly for this, 
that it has given to ycu to distinguish a just line between the power 
and right of the States to choose a President and the unholy claim 
of one branch of Congress to usurp that power. 

" We are aware that in your action you have incurred virulent 
partisan censure. The road to fictitious greatness, to pretense 
instead of reality, lay in the other direction. The trial must have 
been severe, as the temptations you avoided, and the difficulties in 
your path were great, we the more congratulate ourselves that 
Newark and New Jersey, in the persons of yourself and Senator 
Frelinghuysen, have had so large and noble an office in the adjust- 
ment of a controversy so solemn as that of the right of a State to 
vote for the Presidency by its own methods and independent of the 
dictation and surveillance of Congress. The tendency of the House 
of Representatives to usurp judicial and executive functions is a 
danger far greater than any mere change of party rule. 

" But it is not our purpose to discuss the great issue you have 
already adjucated. We only desire to say to you in deep sincerity, 
that here at your home, where you have gone in and out before the 
people for many years, the old love and respect are builded up 
stronger by a new admiration of firmness in judgments that will be 
historic as they are heroic, and mark an era in the Constitutional lav^r 
of our beloved country. 



BIOGRAPHY. 



13 



" With all wishes for your health 
your attached friends : 

" Marcus L. Ward. 
"Joseph A. Halsey. 
"Silas Merchant. 
" Amzi Dodd. 
"W. A. Whitehead. 
"Thos. T. Kinney. 
"J. Whitehead. 
"Abrm, Coles. 
"Charles S. Graham. 
"Joseph Ward. 
"Isaac A. Alling. 
"Martin R. Dennis. 
"John H. Kase. 
"Samuel Atwater. 
"William A. Newell. 
"O. F. Baldwin. 
"H. N. Congar. 
"Ira M, Harrison. 
"A. M. Woodruff. 
"N. Perry. 
"Theo. Macknet. 
"Francis Mackin. 
"j. d. poinier. 
"William Ward. 
"Thomas B. Peddie. 
" Bethuel L. Dodd. 
"W. A. Meyer. 
"Oba. Woodruff. 
"William H. Kirk. 



and happiness, we remain 

" Lewis C. Grover. 
"S. H. Pennington. 
"Joseph N. Tuttle. 
"Daniel Dodd. 
"William B. Mott. 
"John C. Beardsley. 
"S. G. Gould. 

" CORTLANDT PARKER. 

" P. H. Ballantine. 
"A. Grant. 
" h. j. poinier. 
"William T. Mercer. 
" Henry J. Yates. 
"James H. Halsey. 
" Chas. G. Rockwood. 
"A. L. Dennis. 
"Lewis R. Dunn. 
"Theo. P. Howell. 
"James B. Pinneo. 
"j. m. durand. 
"John R. Weeks. 
"A. Q. Keasbey. 
"John W. Taylor. 
" George A. Halsey. 
"Joseph Coult. 
"John Hill. 
"Eli as O. Doremus. 
"Sanford B. Hunt." 



THE "JUDICIAL RECORD" 

OF THE LATE 

MR. JUSTICE BRADLEY. 



BY WILLIAM DRAPER LEWIS, 

OF PHILADELPHIA, PA. 



The death of Mr, Justice Bradley removes one who, 
for the past twent^^-one years, has been a member of 
"the ideal tribmial." No one but his fellow-judges, 
w^ho have come in daily contact with him, can rightly 
estimate the extent of the influence which he had on 
the development of jurisprudence ; for we are told 
that it is in the consultation room that merit, learn- 
ing and the clearness of one's ideas are best tested. 
No show of knowledge which one does not possess, 
no glitter which apes abilit}'-, can long deceive those 
with whom we are engaged in a common intellectual 
labor. And yet, even if we did not have the testi- 
mony of his colleagues, we could not have failed to 
realize the weight in the councils of a court which 
that man must have w^ho, like the late Justice, evinced 
in his written opinions such an intimate acquaintance 
with all branches of the common and constitutional 
law of his own country and with the judicial systems 
of continental Europe, and who showed by the accur- 
acy of his citations in oral statements of the law 
during the argument of a case, the wonderful reten- 
tiveness of his memor\\ 



16 MISCELLANEOUS WRITINGS. 

The members of the profession have two sources 
from which they can judge a judge ; the way in \vhich 
he conducts the business of the court while on the 
bench, and his written opinions. The first, in a mem- 
ber of an appellate court, is the lesser of the two in 
importance, and yet no mention of the late Justice 
would be complete without some notice of his mar- 
vellous aptitude for what one may call "judicial 
business." It was wonderful to see the quickness and 
unfailing accuracy with which he applied abstract 
principles of law to the concrete cases which came be- 
fore him in the Circuit Court. The highest compli- 
ment w^hich a Pennsylvanian could give was paid to 
him by one of the leading members of the bar of that 
State, when he said : "In the manner of Judge 
Sharswood, Justice Bradley cleared the list." 

But it is from his reported opinions, and especially 
his opinions in cases involving the construction of the 
Constitution, that Mr. Justice Bradley will live in 
history. In a short time, so quickly do we forget the 
minor points of a great man's work, by these con- 
stitutional opinions alone will he be judged. Whether, 
as time passes, that judgment will become more or 
less favorable, depends largely on whether the future 
members of the Court follow his conceptions of the 
true meaning of the important clauses of the Consti- 
tution. For with our judiciarj^, as with mankind in 
general, greatness w^hich comes from " ideas " endures 
only so long as those ideas influence human thought 
or conduct. 

Nothing will show us more clearly the point of 
view from which Mr. Justice Bradley regarded consti- 
tutional questions than an analysis of some of the 



"judicial record." 17 

opinions and dissents written by liini in the more im- 
portant cases which came before the Supreme Court 
during his term of office. To examine first : 

The Slaughter House Cases. — Few cases have 
been considered by the Supreme Court -with a more 
abiding sense of their importance ; few seem to be 
fraught with greater peril to the Hberties of the indi- 
vidual citizen ; few have had such little practical 
effect. The reason for this will probably be found in 
the fact that what the Court actually decided was 
not, as a constitutional question, of great importance. 
At the same time, the opinion of the Court contained 
statements of constitutional law of great moment. 
But to-day the dicta of the minority more nearly 
represent the attitude of the members of the Supreme 
Bench than do the dicta of Mr. Justice Miller, who 
spoke for the majority of his brethren. That the 
opinion of the Court Avent beyond what was actually 
necessary for the decision of the case is evident. The 
majority of the Court held that the Act of Louisiana, 
granting to a corporation the monopoly of slaughter- 
ing cattle over a territory 1,154 square miles in ex- 
tent, and containing the city of New Orleans and 
adjacent territory, was constitutional. The business 
of slaughtering cattle, the Court maintained, was 
under the police power of the State, and the act was 
a police measure, legitimately framed to protect the 
health of the community. Mr. Justice Bradley, who 
w^as among those who delivered a dissenting opinion, 
admitted that if the measure was, in its operation, 
well suited to protect the health of the community, 
there would be no doubt of its constitutionality. 
He, therefore, agreed with the majority of the Court 



18 MISCELLANEOUS WRITINGS. 

on the important question of law which arose in the 
case — viz.: whether a State could create a monopoly 
to carr\^ out its health laws ; but he differed from the 
majority on the mixed question of law and fact — 
whether the law of Louisiana was a law designed to 
protect the health of the people of New Orleans. He 
did not think it \vas, but, on the contrary, considered 
the law as establishing a monopoly of an important 
industry, without one iota of public expediency to 
recommend it. 

In the opinion of the Court, however, Mr. Justice 
Miller, after stating the law to be one designed to pro- 
tect the health of the citizens of the State, went on to 
uphold the power of the State to grant monopolies. 
He sa^'S : * ' The proposition is, therefore, reduced to 
these terms : Can any exclusive privileges be granted 
to any of its citizens or a corporation by the legis- 
lature of a State ? " But, curiously, instead of dis- 
cussing the power of the legislature to grant the 
exclusive privilege to carry out its police laws, he goes 
into the whole subject of monopolies, and upholds the 
power of the State to grant monopolies and privileges 
generally. It is this power that Mr. Justice Bradley 
and the other dissenting Judges vehemently deny, and 
it is in connection with this denial that the late 
Justice sets forth with admirable clearness the follow- 
ing conception of the last amendments to the Consti- 
tution. These amendments declare that there is a 
citizenship of the United States, and they protect the 
rights which appertain to that citizenship from en- 
croachment by the States. The rights of the citizen 
are the rights of free-bom Englishmen. One of the 
most valuable is the rig-lit to carrv on anv trade and 



"judicial record." 19 

occupation, hampered only by reasonable restrictions. 
Furthermore, depriving a man by legislative enact- 
ment of his right to carry on a particular trade, is 
not only interfering wath his right as a citizen of the 
United States, but also deprives him of his liberty and 
property without due process of law. This latter 
contention was dismissed without argument by Mr. 
Justice Miller, In his lengthy exposition of the ques- 
tion of "citizenship," however, that Justice advanced 
a radically different conception of the amendments. 
He thought they were, as a matter of fact, designed 
primarily to prevent discriminations by the State 
against the colored man, and, in their construction, 
this fact, which indicated their main object, should 
always be kept in view. The only privileges and 
immunities which were protected by the amendments 
were those which affected citizens of the United States 
as such. Citizenship of the United States and citizen- 
ship of the State were, in his view, two different 
things. In the amendments those who are citizens of 
the States are pointed out, but the privileges and 
immunities of such citizenship are neither defined nor 
protected. The only rights which are protected from 
the encroachment of State legislatures are the priv- 
ileges of the citizen of the United States, and these are 
those which belonged to the citizens of ever)' national 
government. As an instance of a national privilege 
is mentioned the right of a citizen of the United 
States to go to the seat of the Federal Government. 
The rights of a citizen of the United States are not 
the rights of trade and commerce within a State. In 
fact, we can deduce from Mr. Justice Miller's opinion 
that all those rights which are exercised solelv within 



20 MISCELLANEOUS WRITINGS. 

the State, and do not pertain to the national govern- 
ment, are left for their protection to the discretion of 
State legislatures. 

We hope there is little doubt that Mr. Justice 
Bradley's conclusion, that no State can create a mon- 
opoly pure and simple, would be adopted to-day by 
the Court, on the ground that granting a monopoly 
would be depriving the individual of his right to 
carry on a lawful calling, which right is his by virtue 
of his being a citizen of the United States, and, per- 
haps, also on the ground that it would deprive him 
of his property and liberty without due process 
of la-w. 

Certainly, the words of the XlVth Amendment, as 
construed by Mr. Justice Miller, do not, as was in- 
tended, add any additional securities to our liberties. 
The United States was a nation before the amend- 
ments ; and the people of the States were members of 
that nation, and as such each had the right ^which 
belongs to the inhabitants of any free government to 
go to the seat thereof, travel from one part to 
another, or assemble to petition for redress of griev- 
ances. We cannot but believe that, as the importance 
of individual liberty becomes more and more im- 
pressed upon our minds, the following quotation from 
Mr. Justice Bradley's dissent will more and more fully 
echo our own sentiments and the sentiments of the 
great tribunal which he graced so long. 

He saj^s : " The mischief to be remedied (by the 
amendments) was not merely slavery and its incidents 
and consequences, but that spirit of insubordination 
to the national government which had troubled the 
country for so many years in some of the States, and 



''judicial record." 21 

that intolerance of free speech and free discussion 
which often rendered Hfe and property insecure and 
led to much unequal legislation. The amendment 
was an attempt to give voice to that strong national 
yearning for that time and that condition of things 
in which American citizenship should be a sure guar- 
antee of safety, and in which every citizen of the 
United States might stand erect in every portion of 
its soil in the full enjoyment of every right and priv- 
ilege belonging to free men, v^thout fear of violence 
or molestation." 

This strong statement of the belief that the 
amendments provided for the complete protection of 
individual liberty will do more to preserve the name 
of the great jurist than probably any other single 
opinion of his in the reports. 

The Legal Tender Cases.— The keynote of the 
late Justice's opinion of the powers of the Federal 
Government is found in his expression in the Legal 
Tender Cases.* " The United States is not only a 
government, but a national government." As such, 
he argued, it has all those powers which rightly be- 
long and are necessary to the preser\'ation of the 
nation. The real question involved in the Legal 
Tender Cases was with him, as with Mr. Justice Field, 
who dissented, whether a national republican govern- 
ment, in the exercise of its control over the currency 
of the country' (with complete control over which, Mr. 
Justice Bradley contended, it is, as a national govern- 
ment invested), can incidentally take the property of 
one man and give it to another. This is what making 
bills "legal tender" means. No one can read Mr 

* 8 Wall., 555. 



22 MISCELLANEOUS WRITINGS. 

Justice Field's dissent on this point without being im- 
pressed with its force. The question itself is one of 
those on which men of trained intellects will always 
hold different views. The power of the government 
to protect and preser\^e itself, and the right of the 
individual to his property, are two fundamental prin- 
ciples in constitutional law. In the facts of the Legal 
Tender Cases, they apparently came in direct conflict. 
The national government, from its nature and the 
duties and responsibilities which devolve upon it as 
defender of the people from domestic and external 
violence, undoubtedly ought to possess greater control 
over individual liberty and property than the State 
governments. At the same time it is equally true 
that there are principles of individual liberty which a 
national government ought not to be allowed to 
trample under foot. No one would pretend for an 
instant that the property of all men over six feet high 
could be confiscated bv the national orovemment on 
the pretence of saving the country. On the other 
hand, a tax on all creditors of twenty per cent, on 
their debts, collected when payment w^as made, would 
undoubtedly be constitutional. The facts of the Legal 
Tender Cases stand between these two extremes. We 
think that Mr. Justice Bradley was right. It is cer- 
tain that the majority of the bar and of laymen 
approve of the decision. The value of his opinion, 
ho-wever, lies not in the particular conclusions to 
which he came from the facts before the Court, but in 
the point of view which the opinion adopts toward 
the power of congress. To say that this view will 
remain and grow in favor with the bench, the bar and 
the whole country, is saying nothing more than that 
we will continue to be one people, under one national 
government. 



i 



"judicial record." 23 

Chicago, St. Paul, etc., R. R. Co. v. Minnesota.* 
— Mr. Justice Bradley differed with the majority of his 
brethren in his last years of service on the bench on a 
subject which is likely to be one of great importance 
during the next decade. As in the Slaughter House 
Cases, the question arises out of the XIYth Amend- 
ment, It is also the result of the laws of some of the 
States which appoint railroad commissions, vested 
with power to regulate the rates of fare charged by 
common carriers on passengers and merchandise trans- 
ported from place to place in the State. In the above 
case the majorit}^ of the Court, Mr. Justice Blatchford, 
writing the opinion, held, that, while a grant to the 
directors in the charter of a railroad, of the right to 
regulate the rates of fare, does not prevent the States 
from declaring subsequently, through a general law, 
that all rates of fare should be reasonable, yet, never- 
theless, a State cannot prescribe unreasonable rates. 
And the majority further decided that the judiciary- 
are the final arbitrators of the question, what are 
reasonable rates ? ' If, therefore, the legislature directly 
fixed unreasonable rates, or the commission appointed 
by the legislature fixed rates unreasonable in the eyes 
of the Court, the act ^was in contravention of the 
XlVth Amendment, in that it deprived the railroad of 
its property without due process of law. 

' Mr. Justice Bradley, in his dissent, took the posi- 
tion, that since the legislature had the power to fix 
the rates to be charged for public services, such as the 
transportation of passengers and goods, it should be 
the final tribunal to determine whether a specific rate 
is reasonable. And, furthermore, the question of the 

►13-i U. S., 418. 



24 MISCELLANEOUS WRITINGS. 

proper specific rate in any case being essentially an 
" administrative " question, the State legislatures could 
constitutionally delegate the power to determine the 
rate of fare in any specific instance to a commission, 
or even to the courts. In such a case the courts 
would act as a commission and determine an admin- 
istrative or, in other words, an executive question. 
Thus the courts became, as far as the act relating to 
railway fares was concerned, the executive. Under 
the acts of the legislature which simply provide gen- 
eral rules for the guidance of the courts in prescribing 
the rates of fare in any instance, the judges determine 
the rate as would a railroad commission, or the gov- 
ernor of a State under similar circumstances. But it 
was for the legislature to say who should determine 
in a specific instance the rates to be charged by one 
carr}'ing on a public employment. The proper rate 
to charge is a legislative and executive but not a 
judicial question. 

In the present confused state of our ideas concern- 
ing what is a judicial, what is a legislative, or what 
is an administrative or executive question, no one can 
say, with full confidence that his opinion can be sus- 
tained by the trend of authority, whether the reason- 
ableness of a rate of fare, charged by a common carrier, 
ultimately will be considered a judicial question, as the 
majority of the Supreme Court consider it, or, with 
Mr. Justice Bradley, regarded as a legislative question. 
But certainly the last position appeals to us as the 
more consistent of the two. The word " reasonable," 
applied in connection with the power of the legislature 
to prescribe the charges for public employments, either 
means something or nothing. If it means nothing. 



"judicial record." 25 

then the legislature has the right, as Mr. Justice Brad- 
ley claimed, to prescribe any rate of fare it chooses. 
This is only another way of saying that the rate 
established by the legislature, either directly or through 
a commission, or Court sitting as a commission, is 
necessarily reasonable, not simply prima facie reason- 
able. The act of Minnesota, which the Court declared 
unconstitutional, attempted to do this very thing. 
The majority, therefore, took the position that when 
they had said in Munn v. Illinois, that the legislatures 
of the States had power to fix reasonable rates for 
public employments, the word reasonable meant some- 
thing. The State legislatures alone being able to pre- 
scribe what is reasonable, the reasonableness of any 
rate becomes a fit subject for judicial investigation. 

Now, the inevitable consequences of this position, 
while they are not palpable absurdities, are, neverthe- 
less, to say the least, extraordinary, in the extent of 
the power which they place in the hands of the Courts, 
and the way in w^hich they tie the hands of the State 
legislatures in respect to subjects over which it has 
always been considered they had absolute control — 
i. e., the subjects under the police power of the State. 

For instance, it may fairly be argued that in any 
specific instance there is more than one rate which 
may be said to be reasonable, but no one can deny that 
there are possibilities of rates being unreasonably high 
as well as possibilities of rates being unreasonably low. 
If, then, a legislature has no right to fix anything but 
a reasonable rate, suppose no rate is fixed by positive 
act of the legislature, and the company, under per- 
mission of the legislature to "fix rates," fixes a rate 
unreasonably high ? The courts, in an action by a 



26 MISCELLANEOUS WRITINGS 

shipper who had paid an unreasonably high rate^ 
would have either to allow him to recover, and in so 
doing determine what was a reasonable rate for the 
service of the common carrier, or affirm that the 
legislature, through the directors of the company, had 
prescribed an unreasonable rate. Whether under the 
Constitution of the United States the legislatures of 
the States can prescribe rates of fare that are unreason- 
able, may be a question, but it certainly cannot be open 
to doubt, that no State Court -would imply that tlie 
State legislature, by its failure to specify or prescribe 
any rates of fare, had impliedly sanctioned any rates 
of fare, no matter how unreasonable, which a carrier 
company may choose to charge. Under the view of 
the majority, therefore, State Railroad Commissions 
that are not courts are utterly useless. Not only must 
their conclusions as to the reasonableness of any rate 
be reversed by the Judiciar^^, but the Judiciary possesses 
a right, without a commission, to declare, at the suit 
of any individual, that the fare charged by a railroad 
company is unreasonable, and, therefore, contrary to 
the will of the State legislature, which, as a matter 
of courtesy, must be presumed to have provided that 
the company could only charge reasonable rates. 

It may be stated as a general rule that the power 
to do what another considers reasonable is no powder 
at all. For the last fifty j^ears the courts have been 
upholding the power of the State to make police regu- 
lations. The right of the State to prescribe \vhat a 
man shall charge when he is carrying on a public 
employment, as a railroad or a w^arehouse, was based 
on this police power. It is nov^ proposed to take 
av^ray the power by limiting the discretion of the 



"judicial record." 27 

legislature to what the Courts shall think reasonable. 
It seems to us that the whole theory on which the 
right of the State to regulate public charges is based 
is thus disregarded. It was thought to be based on 
the fact that when a man takes up an employment, 
whose proper conduct is of paramount interest to the 
community, he does so subject to the right of the pub- 
lic to regulate his actions. The will of the people in 
this as in other respects is expressed through the acts 
of their representatives in the Legislature. The opinion 
that the reasonableness of the act of the legislature is 
a judicial question, substitutes the will of the judges 
for the will of the people. Mr. Justice Bradley clearly 
foresaw this, and deeply regretted the inevitable con- 
flict between the Courts and the legislature. 

The Commerce Clause. — Outside the interpreta- 
tion of the amendments, the most important w^ork of 
the Court during the late Justice's term was the devel- 
opment of the law relating to interstate commerce. 
No other Justice, except Mr. Justice Miller, has played 
such an important part in the development of this, per- 
haps the most complicated branch of constitutional 
law, and the one on whose proper application rests 
the future industrial prosperity of the country. Mr. 
Justice Bradley and his associates found the law rela- 
tive to interstate commerce involved in doubt. To- 
day, as a result of their labors, many principles which 
can be applied to the majority of new cases as they 
arise have been firmly established. With the most 
important and far-reaching of these the name of Mr. 
Justice Bradley, together with that of Mr. Justice 
Field, will always be indissolubly connected. The 
question of the nature of the power of Congress over 



28 MISCELLANEOUS WRITINGS. 

commerce had often engrossed the attention of the 
Court. Some judges thought the power was concur- 
rent in the States, others exclusive in Congress. The 
members of the Court during the time of Chief Justice 
Tanc}^, seemed to labor between two difficulties. If 
the States had a concurrent power over commerce, 
there appeared to be no limit to the extent of the pos- 
sible interference of State legislatures in the intercourse 
between citizens of different States. The main purpose 
of the " more perfect union," w^as to prevent this inter- 
ference. On the other hand, if the power was not 
exclusiveh' in Congress, were not the State pilot laws 
unconstitutional ? Mr. Justice Curtis apparently solved 
this difficulty in Cooley v. Port Wardens, w^hen he 
pointed out that the nature of a Federal power 
depended upon the subjects over which it w^as exercised ; 
and, therefore, as commerce embraced a multitude of 
subjects, it w^as evident that over some, as pilots, the 
concurrent power of the State extended, w^hile others, 
as imports in the hands of the importer, were exclu- 
sively under the control of the Federal government. 
During the time of Justices Miller, Field and Bradley, 
a complete change has taken place in the attitude of 
the Court, and an important rule, first emphasized by 
Chief Justice Marshall in Gibbons v. Ogden, has been 
firmly established. Chief Justice Marshall had said : 
* * * *' All experience shows that the same measure 
or measures, scarcely distinguishable from each other, 
may flow from distinct powers, but this does not prove 
that the powers themselves are identical."* This 
means that a State, in the exercise of her reserved pow- 
ers, can pass many laws, such as pilot laws, which it 

* 9 Wh., 204. 



"judicial record." 29 

would be competent for Congress to pass in the exer- 
cise of the power over commerce. The fact that the 
power may be exclusiveh^ in Congress, does not prevent 
the State from making a law whose purpose, as dis- 
closed by its terms, is fairly intended to improve the 
internal commerce of the State, or to protect the health 
and morals of the people, from being a constitutional 
law, though Congress might have passed a similar 
law in the exercise of one of her exclusive powers. As 
far as interstate commerce is concerned, the adoption 
of this principle ends the confusion v^hich arose from 
discussing a concurrent pow^er of the State over a sub- 
ject which, as interstate and foreign commerce, is essen- 
tially national. One cannot but believe that its 
recognition is a distinct advance in our constitutional 
law. For from the standpoint of political science, one 
of the purposes of that law is to separate things na- 
tional from things local. In the complete development 
of constitutional law, therefore, there can be no such 
thing as a subject which is at once partly national 
and partly local. Naturalization, for instance, ought 
to be a national matter or a local or State matter. 
To declare that it is both w^ould be to invite confusion. 
The realization that interstate commerce, as such, is 
solely a national matter, but that nevertheless there is 
nothing to prevent the States, in the exercise of their 
reserved powers, from passing laws which Congress 
might pass in the exercise of its exclusive power over 
such a commerce, w^hich is mainly due to Mr. Justice 
Field and the late Justices Miller and Bradle^^ has 
therefore, done much to clarify our ideas on constitu- 
tional subjects. 

An important adjunct to the above-mentioned 



30 MISCELLANEOUS WRITINGS. 

theory, in regard to the consequences of an exclusive 
power in the Federal government, is the doctrine which 
was developed simultaneously with it, and known as 
that of the " silence of Congress." When the Court 
regarded the exclusive power of Congress over com- 
merce as not preventing the States, in the absence of 
conflicting congressional legislation, from affecting com- 
merce in the exercise of their police powers, it imme- 
diately followed that any law of the State, no matter 
how much it obstructed interstate commerce, such as 
a bridge over an important river, was entirely within 
the power of a State to enact, provided its main object 
was one which it was competent for a State to under- 
take. Such a result was to be profoundly deplored. 
Justices Field and Bradley, in a long line of cases, 
commencing with Welton v. State of Missouri,* took 
the old distinction between things over which Congress 
was supposed to have an exclusive control, and those 
over which the States were supposed to have a con- 
current power, and formulated and applied the now 
famous constitutional doctrine, that the silence of Con- 
gress respecting regulations of subjects in their nature 
national must be taken by the courts as an indication 
of its will that commerce in this respect should be free 
from State regulations ; but over certain other subjects, 
such as pilots, over which it used to be contended 
that the concurrent power of the States extended, then 
the non-action or silence of Congress is no indication 
of its will that commerce in this respect should be free 
from State regulations, and, therefore. State laws which 
affect these subjects do not conflict with the will of 
Congress. Thus, though the way of regarding the 

* 91 U. S., 275 



"judicial record," 31 

power of the States in respect to commerce was modi- 
fied, hardly a case had to be overruled. 

The practical effect of this interpretation of the com- 
merce clause of the Constitution is a masterpiece of 
judicial legislation. It requires that the consent of the 
Federal authority should first be obtained before a 
particular locality essays to embark on legislation, 
which, however necessary to preserve the morals of 
the citizens, profoundly affects the commerce of the 
whole country. But when once the whole nation 
decides that such local legislation may, in some in- 
stances, be desirable, the particular regulations are 
enacted by the States, which alone are familiar v^^ith 
local conditions. 

This examination of the opinions of the late Justice 
might be continued indefinitely. We cannot dignify a 
sketch which has simply touched the outskirts of his 
work w^ith the name review. When we look over the 
long line of decisions with which his name is connected, 
a feeling akin to awe and reverence comes over us. Of 
awe, at the magnitude of the work ; of reverence, at 
the greatness of the intellect which solved such a vari- 
ety of problems. Surely the late Justice was one of 
those men of whom we, as Americans, can be justly 
proud. He combined in his own person and character 
the two strong points of the Anglo-Saxon : a great 
and wide practical knowledge of men and things, com- 
bined with the power of concentration and subjective 
analysis. At his death, the bench, bar and country 
lost one who, for the clearness of his thought and for 
the thoroughness of his acquaintance with all subjects 
connected with his profession, was perhaps without a 
superior in the history- of our judiciar\^ 



* " DISSENTING OPINIONS " 

OF 

MR. JUSTICE BRADLEY. 



BY THE LATE A. Q. KEASBEY, Esq, 

OF NEWARK, N. J. 



An interesting paper was read at the recent meeting 
of the American Bar Association, bj Mr. Hampton L. 
Carson, of Philadelpliia, entitled, " Great Dissenting 
Opinions." It may be found in the Albany Law Jour- 
nal for August 25, 1894. It was a happy thought to 
recall in chronological order the important dissenting 
opinions of the justices of the Supreme Court of the 
United States upon questions of constitutional law. 
The writer justly says that these opinions, viewed in 
mass for the last hundred years, constitute in a certain 
sense the best exposition of the views of two contend- 
ing schools of constitutional interpretation, and enable 
us to grasp the living principles underlying the struggle 
between the expanding empire of national federalism, 
and the shrinking reservation of State sovereignty. He 
takes up in their order the great cases, the names of 
which have become fixed in the memory of all students 
of our constitutional history, as the names of famous 
battle-fields become landmarks in the progress of the 
■world. He brings before us in vivid array, Chisholm's 
Executors v. Georgia ; Marbury v. Madison ; Sturges 



New Jersey Law Journal, October, 1894. 



34 MISCELLANEOUS WRITINGS. 

Y. Crowninshield ; McCullocli v. Maryland ; Cohens 
Y. Virginia ; Gibbons v. Ogden ; Dartmouth College 
Y. Woodward ; Osborne y. U. S. Bank ; Bro-wn y. 
Maryland ; Craig y. Missouri ; Ogden y. Saunders ; 
Charles RiYer Bridge y. Warren Bridge ; Genesee Chief 
Y. Fitz Hugh ; the License cases ; the Passenger cases ; 
Prigg Y. PennsylYania ; the Dred Scott case ; the 
Legal Tender cases ; the Slaughter House cases and 
others. 

These names in themselYCS recall to the mind of 
CYcry student of our constitutional history the phases 
of the Yaried contests which haYC marked the develop- 
ment of our national jurisprudence, and it is as Mr. 
Carson says, "of infinite value to gaze on the most 
hotly-contested battle-fields, while it is ennobling to 
know how heroes fought in defense of causes which 
they held dear." Indeed some of these contests carried 
on in the quiet chamber of justice, in Washington, with 
no flare of trumpets or Yv^aving of banners, will be in 
the long future of more interest and importance than 
any waged on our actual battle-fields. We commend 
this scholarly paper to the general student of our his- 
tory, as well as to the bar, as one of fascinating interest. 

But the special object of this note upon it, is to 
allude to the part taken by our great New Jersey Jus- 
tice of the Supreme Court, in the contests that occurred 
during the twenty years of his judicial service. In the 
leading constitutional cases, he wrote few dissenting 
opinions. Like Marshall, he was strong and masterful 
enough generally to carry the Court with him. Mr. 
Carson, in his paper, speaks of only one dissenting 
opinion of Marshall, in Ogden y. Saunders, and says 
that this was the only great dissenting opinion w^hich 



"dissenting opinions." 35 

•occurred during his judicial career. And in the course 
of the paper only one dissenting opinion of Mr. Justice 
Bradley is alluded to, that which he read in the 
slaughter house cases, in which, w^ith Mr. Justice Field, 
he urged, in energetic terms, that the fourteenth and 
fifteenth amendments were intended for whites as well 
as blacks ; that they conferred on all citizens of the 
United States the fundamental rights of person and 
property usually regarded as secured in all free coun- 
tries. But this was not the only dissenting opinion of 
Judge Bradley in matters of grave constitutional im- 
port. Indeed the very last opinion read by him, but 
five weeks before his death, was a dissenting one, and 
related to a branch of constitutional law, to which he 
had devoted his best powers throughout his judicial 
career — that of the scope of National authority in the 
matter of interstate commerce. To extend and secure 
this authority by judicial interpretation of the com- 
merce clause of the Constitution had been his earnest 
effort in every case in which the question arose in any 
form. In a long line of decisions he had expressed his 
views with the logical po-vver and persuasive earnest- 
ness which enabled Marshall to accomplish his great 
work. Only three years before his death, in his opinion 
in the Arthur Kill Bridge case, in the New Jersey Cir- 
cuit, he had stated his views as to the scope of the 
commerce clause in their most advanced form. One 
himdred years before, the State of New York had 
granted to John Fitch, the exclusive right to navigate 
lier waters with vessels *' moved by fire or steam," 
and continued it to Robert Fulton and Robert R. Liv- 
ingston in 1803. Their assignee obtained an injunction 
from the Chancellor of New York to stop a Jerseyman 



36 MISCELLANEOUS WRITINGS. 

from running steamboats from Elizabethtown to New 
York City. But in lS2-i tlie Supreme Court of the 
United States held the State law invalid, and Chief Jus- 
tice Marshall laid down principles which have been 
reasserted in various forms and applied with increasing 
force to all instrumentalities of interstate intercourse 
in every phase of its development. In the Arthur Kill 
Bridge case these principles had been rudely assailed 
by the State of New Jersey in its turn, as New York 
had done a century before. Her legislature declared 
by joint resolution, that the waters of the Kill and the 
soil under them were hers by sovereign right, and that 
if the Congress should authorize a bridge, it would be 
a usurpation, and the sympathy of all sister States 
was invoked in the struggle of New^ Jersey for State 
rights. A law was passed also expressly forbidding 
any person or corporation to bridge any river dividing 
New Jersey from other States. 

A law of Congress authorizing the Baltimore and 
New^ York Railroad Company to bridge the sound was 
passed, notwithstanding this State protest, and the 
company proceeded to do so. The Attorney General 
of New Jersey obtained an injunction and the work 
w^as stopped — as the New York Chancellor stopped Mr. 
Gibbons from running his steamboats, the Stoudinger 
and Bellona, from Elizabethtown to New York, in 
1824. The case was removed to the United States 
Circuit Court, and this furnished Mr. Justice Bradley 
an opportunity to express his views on the subject of 
interstate commerce, and he did it with a vigor not 
surpassed by that of Marshall in Gibbons v. Ogden. 
He declared that " the power of Congress is supreme 
over the whole subject, unimpeded by State laws or 



** DISSENTING OPINIONS." 37 

State lines ; that in matters of foreign and interstate 
commerce there are no States ; and that it must be 
received as a postulate of the Constitution, that the 
government of the United States is invested w^ith full 
and complete power to execute and carry out its pur- 
poses, whether the States co-operate and concur therein 
or not." As to the claim of the State to ownership 
of the waters and the soil under them he said, " The 
power to regulate commerce is the basis of the power 
to regulate navigation and navigable waters and 
streams ; and these are so completely subject to the 
control of Congress, as subsidiary to commerce, that 
it has become usual to call the entire navigable waters 
of the countrv the navigable waters of the United 
States. It matters little whether the United States 
has or has not the theoretical ownership and dominion 
in the waters, or the land under them ; it has what is 
more, the regulation and control of them for the pur- 
poses of commerce, so wide and extensive is the opera- 
tion of this power, that no State can place any 
obstruction in or upon any navigable waters against 
the will of Congress, and Congress may summarily 
remove such obstructions at its pleasure." 

This case was taken to the Supreme Court, but the 
appeal was abandoned by the State, and the bridge 
was built, and now the Hudson River is to be bridged 
at the city of New York under a law of Congress, 
without opposition. Judge Bradley expressed his 
regret at the withdrawal of this appeal, for he was 
anxious for every opportunity to vindicate his views 
on interstate commerce and embody them in the judg- 
ments of the Supreme tribunal. 



38 MISCELLANEOUS WRITINGS. 

Certain cases afterward occurred, in which he felt 
that the Court was taking retrograde steps on this 
subject, which he deemed of vital importance. 

One of them was Pullman's Palace Car Company 
V. Commonwealth of Pennsylvania, 141 U. S. 101,, 
decided May 11, 1891. 

In this case the majority of the Court held, that 
*' there is nothing in the Constitution or laws of the 
United States which prevents a State from taxing per- 
sonal property within its jurisdiction, employed in 
interstate or foreign commerce," and that, " where 
the cars of a company within a State are employed in 
interstate commerce, their being so employed does not 
exempt them from being taxed by the State." The 
opinion of the Court w^as read by Mr. Justice Gray, and 
Justices Bradley, Field and Harlan dissented. Mr, 
Justice Bradley read the dissenting opinion, in which 
he asserted his well known views on the score of the 
commerce clause very strongly, saying that " A citizen 
of the United States, or any other person, in the per- 
formance of any duty, or in the exercise of any privi- 
lege, under the Constitution or laws of the United 
States, is absolutely free from State control in relation 
to such matters. So that the general proposition, 
that all persons and personal property v^ithin a State 
are subject to the laws of the State, unless materially 
modified, cannot be true." After a careful review of 
the cases he dissented emphatically from the result 
reached by the Court, and closed b}^ saying : " The 
State can no more tax the capital stock of a foreign 
corporation than it can tax the capital of a foreign 
person. Pennsylvania cannot tax a citizen and resi- 
dent of Nev^ York, either for the w^hole or any portion 



"dissenting opinions." 39 

of his general property or capital. It can only tax 
such property of that citizen as may be located and 
have a situs in Pennsylvania. And it is exactly the 
same with a foreign corporation. Its capital, as such, 
is not taxable. To hold otherwise, -would lead to the 
most oppressive and unjust proceedings. It would 
lead to a course of spoliation and reprisals that would 
endanger the harmony of the union." The same dis- 
sent was filed in the case of Pullman's Car Co. v. 
Hayv^ard, decided on the same day, in which it was 
held, that, " the cars of a company, let to railroad 
corporations, and emplo^^ed exclusively in interstate 
commerce, may be taxed in a State, and the tax 
apportioned among the counties of the State accord- 
ing to mileage of the railroads in each county, and 
levied in those counties." Judge Bradley regarded 
these cases as indicating a divergence from the line of 
decision which he had long striven to maintain. 

Another case -was the one already alluded to in 
w^hicli he read his last opinion, dissenting from the 
vie\vs of the majority. It was the case of State of 
Maine v. Grand Trunk Railroad Company of Canada, 
142 U. S., decided December 1-i, 1891. 

Justice Field read the opinion of the Court, holding 
that a State can levy an excise tax on a railroad cor- 
poration for the privilege of exercising its franchise 
within the State ; that the character of such a tax or 
its validity are not determined by the luodes adopted 
in fixing its amount for any specific period of its pay- 
ment ; and that reference to the transportation receipts 
of a railroad companj^, and to a certain percentage of 
the same in determining the amount of an excise tax 
on the company is not in effect the imposition of a tax 



40 MISCELLANEOUS WRITINGS. 

on such receipts, nor an interference with interstate 
commerce, although the railroad lies partly within and 
partly without the State. Justice Bradlej'- regarded 
this as an undue limitation of the power of Congress 
over interstate commerce, and read an adverse opinion. 
It may not take rank amongst " Great Dissenting 
Opinions," but it displays his mental characteristics in 
a striking manner, and shows the vigor and earnest- 
ness v^hich he al^vays brought to bear in dealing with 
this great subject. Three of his associates concurred 
with him. He said: ''Justices Harlan, Lamar, 
Brown and myself, dissent from the judgment of the 
Court in this case. We do so both on principle and 
authorit}'. On principle because, whilst the purpose 
of the law^ professes to be to lay a tax upon the foreign 
company for the privilege of exercising its franchise in 
the State of Maine, the mode of doing this is uncon- 
stitutional. The mode adopted is the laying of a tax 
on the gross receipts of the company, and these receipts, 
of course, include receipts for interstate and interna- 
tional transportation between other States and Maine, 
and between Canada and the United States. Now, if 
after the previous legislation, w^hich has been adopted 
with regard to admitting the compan}- to carr^^ on 
business within the State, the Legislature has still the 
right to tax it for the exercise of its franchises, it should 
do so in a constitutional manner, and not (as it has 
done) by a tax on the receipts derived from interstate 
and international transjDortation. The power to 
regulate commerce among the several States (except as 
to matters merely local) is just as exclusive a power 
in Congress as is the power to regulate commerce with 
foreign nations and with the Indian tribes. It is given 



"dissenting opinions." 41 

in the same clause, and couched hi the same phrase- 
ology ; but if it may be exercised by the States, it 
might as well be expunged from the Constitution. We 
think it a powder not only granted to be exercised, but 
that it is of first importance, being one of the principal 
moving causes of the adoption of the Constitution." 

He then referred to disputes between States as to 
interstate facilities of intercourse, and the intolerable 
discriminations made, and said : " Passing this by, 
the decisions of this Court for a number of years past 
have settled the principle that taxation (which is a 
mode of regulation) of interstate commerce, or of the 
revenue derived therefrom (vk^hich is the same thing), 
is contrary to the Constitution." 

He cited, Pickard v. Pullman Car Co., 117 U. S. 
34, — annual tax on sleeping cars going through the 
State ; Leloup v. Mobile, 127 U. S. 64-0,— telegraph 
receipts ; Norfolk Co. v. Pennsylvania, 136 U. S., 114, 
— keeping a through railroad office in a State ; 
Crutcher v. Kentucky, 141 U. S. 47, — taxation of ex- 
press companies for doing business between the States. 

And added : "A great many other cases might be 
referred to, showing that in the decisions and opinions 
of this Court this kind of taxation is unconstitutional 
and void. We think the present decision is a depart- 
ure from the line of these decisions. The tax, it is 
true, is called a tax on a franchise. It is so called, but 
what is it in fact ? It is a tax on the receipts of the 
company, derived from international transportation." 

After speaking of the length to which State Courts 
and the Supreme Court have gone in sustaining various 
forms of taxes on corporations, he said : *' I do not 
know that jealousy of corporate institutions could be 



42 MISCELLANEOUS WRITINGS. 

carried much further. The Supreme Court has held 
that taxation of Western Union stock in Massachu- 
setts, graduated by the mileage of lines in that State 
compared with the lines in all other States, was only 
a tax upon its property, yet it was in terms a tax 
upon its capital stock, and might as well have been a 
tax upon its gross receipts. The present decision 
holds that taxation may be imposed upon the gross 
receipts of the company for the exercise of the fran- 
chise wathin the State, if graduated according to the 
number of miles the road runs in the State." And he 
closed by saying : " Then it comes to this. A State 
may tax a railroad company upon its gross receipts, 
in proportion to the number of miles run within the 
State, as a tax on its propert^^ and may also la\^ a 
tax upon these same gross receipts in proportion to the 
same number of miles for the privilege of exercising its 
franchise in the State. I do not know what else it 
may not tax the gross receipts for. If the interstate 
commerce of the country is not, or will not be, handi- 
capped by this course of decision, I do not understand 
the ordinary principles which govern human conduct." 
Mr. Justice Bradley died on the 22d day of Janu- 
ary, 1892, only a few weeks after reading this opinion. 
The great Chief Justice lived eight years after deliver- 
ing his dissenting opinion in Ogden v. Saunders. Mr. 
Carson says that this opinion by Marshall has been 
termed his master effort ; that ' ' prior to that time the 
steadiness of the movement of the ship of state under 
the hand of her great helmsman, had been without 
wavering or shadov^ of turning ; " and that " v^ith 
the passing of Marshall, the school of strict construc- 
tionists marched to power, and the current of decision 



" DISSENTING OPINIONS." 43 

was turned into channels, running in anew direction." 
'' It does not seem likely, in the present situation of 
the country in respect to interstate commerce, that the 
current of decision on the subject will run in any new 
direction, or meet with serious obstacles with the 
passing of Bradley. And yet, within two weeks of his 
death, he expressed to the writer of this note his fear 
that such might be the case, and alluding to the judg- 
ment from which he had so lately dissented, he said 
with great earnestness, and evidently with some fore- 
boding, that he hoped to live and retain his faculties 
for four years more, so that he might finish the work 
of placing the power of the national government over 
interstate commerce, in all its forms, on an impregna- 
ble basis. ' 

September 24, 1894. 



THE LEGAL TENDER CASES IN 1870. 



The recent death of Justice Stephen J. Field of the 
Supreme Court of the United States releases me from 
a sacred obligation, imposed by my father, the late 
Justice Joseph P. Bradley, when on his deathbed and 
enables me to publish to the world the true and here- 
tofore unknown history of the controversy in the secret 
conferences of the Supreme Court, which led up to and 
resulted in the famous Legal Tender decision of that 
Court, — the reversal of the decision of the U. S. Supreme 
Court in Hepburn v. Gris-wold, and to vindicate the 
memory and reputation of my father, by refuting the 
slanderous charge that Judge Strong and Judge Brad- 
ley were appointed to the bench with the distinct 
understanding that they v^ould vote to reverse the 
first decision of the Court on that question — the con- 
stitutionality of the Legal Tender Act. 

The obligation above referred to w^as that I should 
not permit the documents herewith printed to become 
public, ' ' as long as any Justice who was on the bench 
at that time was still living," and being given me by 
my father at such a solemn moment and reinforced by 
the personally expressed wish of Justice Strong, I have 
religiously conformed to it, but not without great 
effort, in the face of repeated statements published by 
distinguished writers, in which they have accepted a 
mere political rumor of the day, as a fact and have 
referred to the incident as the " packing " of the Court. 



46 MISCELLANEOUS WRITINGS. 

Paul L. Ford, in the " Introduction " to his edition 
of the " Federalist " so refers to it, and J. W. Shuckers 
in his elaborate " Life and Public Services of Salmon 
Portland Chase" (Chief Justice Chase), devotes a 
v^rhole chapter to the subject, pointedly and suggest- 
ively intimating that it vv^as a prearranged scheme, if 
not a corrupt bargain between the then Executive, 
Gen. Grant, and the two appointees, Strong and 
Bradley. 

Ex-Secretary of the Treasury, Charles S. Fairchild, 
in a public address at Boston a few years ago, repeated 
the charge, and this at last, induced Senator George 
F. Hoar, of Massachusetts, to publish a refutation of 
it, based on historical facts and dates, but more par- 
ticularly in defense of his distinguished brother, Hon. 
E. R. Hoar, at the time Attorney General, and who had 
warmly supported and urged the appointment of 
Judges Strong and Bradley. But the real history of 
the action of the Court itself is contained and only 
contained in the "Statement," now given to the 
public. 

The original paper, prepared by Mr. Justice Miller, 
at the request of the majority of the Court, and signed 
by them (now in my possession), was kept by him 
until his death, when Mr. Justice Bradley obtained it 
and preserved it till the day before he died, at which 
time he consigned it to my keeping w^ith the injunction 
before mentioned. This was done vnth the knowledge 
and consent of Mr. Justice Strong, the surviving signer 
of the paper. 

It is now given to the public, not only as a vindi- 
cation of these two great and honorable judges, bt>t 
in the hope that it will definitely and for all tlipe 



THE LEGAL TENDER CASES. 47 

settle this often misrepresented controversy and 
silence the tongues and pens of those who have lightly 
tossed about the reputations of two men, whose names 
in legal history will long remain as bright stars in 
American jurisprudence. 

The facts of the case leading up to the contro- 
versy cannot be better stated than by quoting 
from Senator Hoar's letter to the Worcester Spy of 
December 7, 1896 : 

" On the 7th day of February, 1870, the Supreme 
Court of the United States met at 12 o'clock. The 
Senate met at the same hour. After the disposition of 
some other business, Chief Justice Chase announced 
the decision of the Court in Hepburn v. Griswold. 
The Court held, in substance, that it w^as not within 
the constitutional power of Congress to make the 
United States Treasury notes legal tender for debts, 
past or future. The Chief Justice in his opinion said, 
in substance, that this power was not expressly 
granted to Congress by the Constitution, and was 
not implied as being necessary to the execution of 
other expressly granted powers, including the power 
to declare and carry on war. The Judge who gave 
this decision w^as himself the author of the law which 
he declared unconstitutional, and had recommended its 
passage, and had procured the votes of reluctant Sen- 
ators and Representatives by personal interviews in 
which he had urged the passage of the measure on the 
ground that it was impossible to carry on the v^ar 
without it, and that the government could neither pay 
its soldiers nor fulfil its contracts for the supplies and 
materials of war, if it were restricted to gold and silver 
alone. Among the persons with whom Mr. Secretary 



48 MISCELLANEOUS WRITINGS. 

Chase had these personal interviews is mj late col- 
league, Mr. Dawes, then a leader in the House of Rep- 
resentatives, and several other living persons whom I 
might name, as v^ell as a good many who are deceased. 
I mention this not for the sake of implying any censure 
upon that great statesman and patriot. Chief Justice 
Chase, for declaring in his place upon the bench the 
law^ as it then seemed to him, after the exigencies of the 
war had passed. Indeed, he deserves the greater 
honor, if, in interpreting the Constitution in his place 
upon the bench, he disregarded the consideration that 
his ovirn reputation might be affected by the charge 
of inconsistency or by the condemnation which his 
decision w^ould imply of his own previous conduct. I 
only mention the fact to show that it v^'as verj^ un- 
likely that anybody should have expected beforehand 
that he alone among the leading Republican statesmen 
of the war period, should come to such a conclusion. 
This decision was announced, as I have stated, on 
Monday, February 7, 1870. I suppose that opinions 
w^ere read in other cases, that motions were heard, as 
was then usual on Monday morning, and that prob- 
ably this opinion -was not read before two or three 
o'clock. Indeed, the reading of the Chief Justice's opin- 
ion, and those of the minority, must have taken an 
hour or two. On the same day, February 7, 1870, 
the nominations of Justices Strong and Bradley were 
sent to the Senate. The fact that the^^ were sent there 
was announced in the Washington Evening- Star of 
February 7, and in the Boston and Nev/ York even- 
ing papers that day. I have now in my hand copies 
of the nominations which I have obtained from the 
files of the Senate. They read as follows : 



THE LEGAL TENDER CASES. 49 

" To the Senate of the United States : 

" I nominate Joseph P. Bradley, of New Jersey, to be Associate 
Justice of the Supreme Court of the United States. 

"U. S. Grant. 

"Executive Mansion, February 7, 1870." 

This is a precise copy of the nomination of the Hon. 
William Strong, except the name and State. The 
Senate journal does not show the receipt of any par- 
ticular nomination until the Senate goes into executive 
session, which may not be for some days. But the 
nominations are made public at once, and these were 
made public all over the country on the afternoon of 
February 7. I have also in my hand a copy of what 
was printed in the Washington Evening- Star of Feb- 
7. At the head of the first column, first page, under 
the heading, " Nominations," is the announcement that 
the President sent to the Senate that afternoon the 
nomination of Joseph P. Bradley to be Associate Jus- 
tice of the Supreme Court of the United States, Aace 
E. R. Hoar, rejected ; and William Strong to be Asso- 
ciate Justice of the Supreme Court of the United States, 
vice Edvnn M. Stanton, deceased. 

In the N^ew York Tribune, of Tuesday, February 8, 
is the Washington letter of February 7 : " The Pres- 
ident sent to the Senate to-day the names of Bradley 
and Strong." In the Boston Evening Transcript of 
February 7, is the statement: "The President has 
just nominated to the Senate, Judge Strong of Pennsyl- 
vania and Joseph P. Bradle^^ of New Jersey as Asso- 
ciate Justices of the Supreme Court." But, more than 
all, the Boston Herald published on the morning of 
February 8, has, likewise, an announcement of these 
nominations made the day before. The evening edition 



50 MISCELLANEOUS WRITINGS. 

of the Herald for February 7, is not in our library. 
I presume you will find the same thing there, though 
that is unimportant. 

The Senate journal, as I have said, does not show 
the receipt of any particular Executive nomination 
until it is opened and laid before the body in Executive 
session, which may not take place for days or weeks, 
although ordinarily there is one every few days. But 
the Congressional Globe of that morning shows that 
the Senate merely transacted its routine morning busi- 
ness, and then took up resolutions in honor of a deceased 
member, and adjourned. It further shows that during 
the routine morning business, and before the introduc- 
tion of bills and resolutions, the President's secretary 
came in with sundry legislative messages. It is the 
only time he came in that day. So, undoubtedly, the 
Executive message nominating the Judges was deliv- 
ered at the same time -with the legislative messages, 
and was upon the table of the Senate a few minutes 
after 12 o'clock. 

I have dwelt upon these details to show the absolute 
accuracy of my statement and that of my brother, 
which I shall quote hereafter, that these nominations 
were made before the decision. But the question 
whether the Chief Justice announced his opinion or the 
nominations got to the Senate first by a few minutes 
is of the most trifling character, because the President's 
signature to the nominations must have been made 
before the session of the Senate that morning, and the 
Cabinet meeting at which they v^^ere discussed was held 
Tuesday of the previous week, and, as will appear very 
soon, the nomination of Judge Strong, at least, had 
been discussed and agreed upon long before. 



THE LEGAL TENDER CASES. 51 

The decision of the Supreme Court in Hepburn v. 
Griswold was made and entered when the Judges had 
finished reading their opinions on Monday, February 
7th, 1870, after the nominations of Justice Strong and 
Bradley had been laid upon the table of the Senate. 
It -was some hours after they had been signed by the 
President. It was some days after they had been 
agreed on in Cabinet meeting. It was weeks after 
the probable appointment of Judge Strong, as I shall 
show presently, had been announced in the newspapers. 
That ^vas the first and only decision of the Supreme 
Court in Hepburn y. Griswold. I shall speak presently 
of what took place November 27, 1869. What I am 
speaking of now is the decision of the Supreme Court. 

The practice of the Supreme Court of the United 
States is, I suppose, well understood in Massachusetts. 
It has lately been described by Mr. Justice Harlan in a 
public address in Cincinnati. 

I have taken pains also to get from a very high 
authority, indeed, a statement to the same effect. The 
course is precisely the same as that pursued by the 
Supreme Court of Massachusetts, except that while the 
decisions of the Supreme Court of the United States are 
announced, according to the old practice, orally from 
the bench, the decisions of our Court are now made by 
a rescript filed in the clerk's office, and accompanied 
by a brief written statement of the Court's reasons. 
Th.e course of proceeding in the Supreme Court of the 
United States is this : After the hearing of arguments 
the Judges meet in consultation. Each of the Judges 
states his opinion as fully as he may desire. After 
€very Judge has been heard, and the matter has been 
discussed as far as any member of the Court thinks fit. 



52 MISCELLANEOUS WRITINGS. 

the Judges vote upon the case. The Chief Justice then 
directs what Judge shall deliver the opinion of the 
Court. If any Judge dissent, he is at liberty to pre- 
pare a minority opinion giving his reasons and the 
reasons of the other Judges who may agree vnth. him. 
No record is made of this proceeding, and it is kept 
absolutely secret within the breasts of the Judges 
until the public announcement of the opinion in the 
way I have stated. At some future meeting of the 
Judges, when the opinion of the Court has been pre- 
pared, it is read over to the Judges. It is discussed, 
changed or modified in consequence of any suggestion 
that may be made. In Yery recent 3^ears it has been 
the custom of the Judge preparing the opinion to send 
copies to his brethren. It sometimes happens that an 
investigation by the Judge who has the responsibility 
of preparing the opinion changes his mind and sug- 
gests to him some new point of view, which he reports 
to his fellows, and which changes their minds also. I 
have had this happen tv^ice in my own practice in 
Massachusetts. One case was Taft v. Uxbridge, w^here 
the Court first came to a conclusion in my favor, which 
was afterward reversed ; and one was the case of Wol- 
cott V. Winchester, where the Court first came to a 
conclusion against me, but afterward decided in my 
favor. But no record whatever is made of anything ex- 
cept the mere memoranda of the Judges to aid their own 
memory until the public announcement. Now to call 
this proceeding a decision of the Court is, in my opinion, 
a misuse of language. It is in the highest degree secret 
and confidential. Any Judge who should betray the 
confidence of the Court in this matter would be abso- 
lutely disgraced, w^ould forfeit the respect of his fel- 



THE LEGAL TENDER CASES. 53 

lows ; and Avhen we consider the effect upon properties 
and business affairs of many of these decisions of the 
Supreme Court of the United States, I suppose it is not 
too much to say that he would deserve impeachment. 
I inquired of two Justices of the Supreme Court of 
Massachusetts, both of whom had been reporters, 
whether they had ever known of this secret getting 
out from the Supreme Court of Massachusetts since 
the beginning of the Government ; and they both re- 
plied that they had never known or heard of such a 
case. In the case of the Supreme Court of the United 
States I have never known or heard of such a case, 
with one or two exceptions, although I have been tol- 
erably familiar Avith that Court and pretty intimately 
acquainted with every member of it for nearly twenty- 
eight years. There >vas a case some time ago w^here 
a decision which considerably affected the price of 
stocks in some v^ay leaked out. Whether it came 
from some imprudent remark of one of the Judges, or 
from some page or attendant about the Court room 
who came across some paper w^hich had been care- 
lessly left exposed, nobody knows. But it excited 
great feeling on the part of the members of the Bench. 
Before the Dred Scott decision President Buchanan 
expressed in his message the hope that the question of 
the power of Congress over slavery might be removed 
from political discussion by the determination of the 
Supreme Court. It was conjectured, but never proved, 
and I think never believed by the large majority of the 
profession of the country, that he might have had some 
understanding in the matter with Chief Justice Taney. 
I do not believe it m^^self The knowledge that the 
question was before the Court and the general opinions 



54 MISCELLANEOUS WRITINGS. 

Upon public questions of its members were quite suffi 
cient for President Buchanan's hope, without attrib. 
uting an}^ thing AArrong to any member of the Bench. 

I ought frankly to concede that to this ascertain- 
ment in conference of the opinions of the members of 
the Court, the term "decision" is not infrequently 
applied, although there is nothing final in its character. 
But the word to be used is of no consequence if only 
the substance of the transaction be clearly understood. 
There is no finality about it. It is merel}^ what the 
Judges call a "semble." The Judges hold their minds 
open to reconsider, modify, or reverse their opinions 
if new light be shed upon the case by the researches of 
the Judge who prepares the opinion, or by further 
reflection or further discussion when the opinion is read 
in full. And they keep these opinions an absolute 
secret. 

A second meeting of the Judges was held in regard 
to Hepburn v. Griswold on the 29th day of January, 
1870. The opinion in that case was not read and 
agreed to in conference until that day. (See the 
opinion of Chief Justice Chase in the Legal Tender 
Cases, 12 Wallace, 572.) 

The dates with ^diich w^e have to deal with are 
these : 

The opinion of the Judges ascertained in conference 
27th November, 1869. 

The opinion read and agreed to in conference 
January 29, 1870. 

The opinion of the Court announced, and the 
decision entered upon the docket, February 7, 1870. 

The statute increasing the number of Judges passed 
April, 1869, to take effect December, 1869. 



THE LEGAL TENDER CASES. 55 

The nominations of Judges Strong and Bradley 
sent to the Senate February 7, 1870. 

Stanton nominated, December 20, 1869. 

Stanton died December 24, 1869. 

Judge Grier's resignation to take effect February 1, 
1870. 

Judge Hoar nominated December 15, 1869. 

Judge Hoar rejected February 3, 1870. 

It appears from the above statement that when 
the decision was entered and the opinion was publicly 
announced, there were but four Judges upon the Bench 
who agreed to that decision, out of a Court, which 
when full, consisted of nine. This consideration has 
not the slightest effect upon the validity of the decision. 
Whether it should have any weight as to the propriety 
of a rehearing, is a fair question. 

I have no doubt the Court discussed, in consultation, 
the case of Hepburn v. Griswold, November 27, 1869, 
and the opinion of the majority was then ascertained. 
We will consider presently the question whether that 
opinion leaked out. But first let us take the history 
of these appointments. When President Johnson came 
into power the Supreme Court consisted often members. 
By the statute of July 23, 1866, it was enacted that 
there should be no new appointments, until by death or 
resignations the Court should be reduced to seven 
members, and seven thereafter should be the number 
of Justices. This statute has been generally supposed 
to have been passed to take from President Johnson 
the power of appointing any new Judges in place of 
some of the members of the Court who were growing 
old, and whose places, in the course of nature, would 
short] V be vacant. When President Grant came in, 



56 MISCELLANEOUS WRITINGS. 

the number of the Court had become reduced to eight 
members. The docket had become crowded with busi- 
ness, and suitors had to wait years for a hearing. 
Accordingly, at the short spring session in 1869, an 
act was passed increasing the number of Justices to 
nine, and authorizing the President to nominate an 
additional Judge to the session of the Senate, which 
would take place the following December. The Presi- 
dent nominated to that vacancy Mr. Hoar, then 
Attorney General. This nomination w^as made Decem- 
ber 14, 1869. I have never heard that anybody 
supposed or intimated that that nomination v^-as made 
for the purpose of packing the Court, although, as you 
will observe, it was made three weeks after the first 
conference of the Supreme Court in regard to Hepburn 
v. Griswold, and the conclusion then arrived at, by 
whatever name you choose to call it. There were two 
members of the Cabinet from Massachusetts. There 
was none from the great State of Pennsylvania, and 
there was none from the South. I suppose I should 
not have to go beyond the columns of the Boston 
Herald, or beyond the abundant testimonials of 
eminent lawyers, to support the statement that Judge 
Hoar's character and legal ability were such as to 
render no other explanation of his selection necessary. 
President Grant had determined upon this appoint- 
ment months before. September 23, 1869, the Presi- 
dent called upon Judge Hoar at his room, stayed 
two hours, and informed him that there was no 
lawyer from the Southern States he felt willing to 
appoint to the Court, and asked him to accept the 
office. I have now before me my brother's letter to 
me of that date, in which he states these facts, and 
asks my advice as to his acceptance. 



THE LEGAL TENDER CASES. 57 

Mr. Justice Grier, early in December, 1869, sent in 
his resignation, to take efifect on the first of the 
following February. I have not the date when Judge 
Grier sent in his resignation. But the nomination of 
Mr. Stanton, his successor, of which I have the record 
with me, was made by the President December 20, 

1869. I have never heard that anybody ever dreamed 
that the selection of Stanton was made for the purpose 
of packing the Court. A petition asking his appoint- 
ment had been sent to the President, signed, if I am 
not mistaken, by every Republican member of the 
Senate. He had been a great lawyer. He had been 
Attorney General of the United States. He was the 
great War Secretary. With the exception of Grant 
and Seward and Sumner and Chase, he was undoubt- 
edly the most conspicuous figure in American public 
life. He was a Pcnns3dvanian, and belonged to the 
Circuit to which the President would naturally look 
for a successor to Mr. Justice Grier. Stanton died 
after accepting the office and before taking his seat, 
on the 24th dav of December, 1869. Mr. Hoar was 
rejected by the Senate on the third da}^ of February, 

1870, four days before the decision of Hepburn v. 
Griswold. 

Wlien Judge Hoar was nominated, it became neces- 
sarv for the President to look out for another 
Attorney General. William Strong of Pennsylvania 
was offered the place. He came to Washington to see 
about it. I, myself, saw him there and was introduced 
to him. I knew at the time that it was expected that 
he would be my brother's successor, although I cannot 
say from memory that I heard him say that he 
expected to take the place. So when Stanton died. 



58 MISCELLANEOUS WRITINGS. 

and Judge Hoar was rejected and remained in the old 
office, it seemed almost inevitable that Judge Strong, 
if he were fit for the place, should be offered one of the 
vacant Judgeships. He was from Grier's circuit, and 
from Pennsylvania, the State in that circuit to whose 
able Bar the President had looked for an Attorney 
General. He was admirably qualified for the place. 
He had been a great Judge in his own State. He was 
not only the head of the Bar in that circuit, certainly 
the leading Republican lawyer, and he held a place in 
the reverence and affection of the people who knew 
him, as a man of singular purity and integrity, which 
I had almost said was equalled by that of John Jay 
alone. I think I am not over bold when I affirm that 
the bitterest partisan in this country, of whatever 
political opinion, or from whatever part of the country 
he may come, will not question in the light of his long 
service upon the Bench, that the nomination of William 
Strong needs no explanation other than the statement 
of the conspicuous merit and quality of the man. This 
nomination would have been practically inevitable, if 
the legal tender decision, or the legal tender law, had 
never been heard of. 

Stanton died December 24, 1869. But it was quite 
natural that the President should not nominate his 
successor until the question of Judge Hoar's confirma- 
tion or rejection was settled. If Judge Hoar had been 
confirmed, the original plan of having Mr. Strong 
Attorney General might have been carried out, although 
he would probably have been appointed to Judge 
Grier's place. I have no special means of forming an 
opinion on that question. But the President awaited 
the final action of the Senate, which undoubtedly had 
been expected for some time before the final vote, and 
then sent in the two names tosfether. 



THE LEGAL TENDER CASES. 59 

I do not think it necessary to vindicate the selec- 
tion of Mr. Justice Bradlc}", any more than that of 
Judge Strong, I have heard eminent lawyers compare 
him with Chief Justice Marshall, in the vigor and grasp 
of his intellect, and attribute to him a variety of 
accomplishments which would not be attributed to 
Marshall. But such utterances, when we experience a 
great public loss like that of Judge Bradley, are apt 
to be extravagant. It is only necessary to say, what 
I am sure every living lawyer who is interested in such 
things will agree to, that there is no greater or purer 
judicial fame than that of Judge Bradley among the 
Judges who were upon the Court when he took his 
place upon it, or who have been upon the Court from 
that day to this. 

One thing ought, however, to be said. It v^as by 
Judge Bradley's advice that the great railroad, for 
which he w^as counsel, determined, when the legal 
tender laws were in force, that honor and duty 
required them to pay their debts in gold. 

Now, having stated the facts, let us come directly 
to this foul charge. It can only be sustained by prov- 
ing three things : 

(1.) That the confidence of the Court had been 
betrayed, and the views of the Judges upon the consti- 
tutionality of the legal tender law which they had 
expressed to each other in their conference, November 
27, had leaked out ; 

(2.) That these views had become known to 
President Grant and to the Attorney General or the 
Cabinet ; 

(3.) That in consequence of such knowledge they 
had done something they would not have done but for 
that. 



60 MISCELLANEOUS WRITINGS. 

These three points have been so conclusively dis- 
posed of in Senator Hoar's " Refutation " that further 
comment on that question is unnecessary. The Court 
finally having its full complement of Judges, and the 
imperative necessity of obtaining a final decision of the 
questions involved in the case of Hepburn v. Grisvrold 
forcing itself upon the Government, application for a 
rehearing of them was made by the Attorney General, 
and it is to this application and the result of it that 
the "Statement" prepared by the majority of the 
Court, and herewith published, has to do. Let it 
speak for itself !— [Editor.] 



THE LEGAL TENDER CASES. 61 



A statement of facts relating to the order of 
the Supreme Court of the United States 
for a re-argument of the Legral-Tender 
Question, in April, 1870. 

[As much adverse criticism has been made upon the 
action of the Supreme Court in re-considering the 
Legal-Tender question in other cases, after the decision 
made in the case of Hepburn v. Oris wold, (8 Wall. 
603), the following statement of the facts connected 
therewith, made bj the Justices who voted for the 
re-consideration, is due to the truth of history. It was 
elicited by a statement made by Chief Justice Chase, 
and placed by him on the files of the court, but with- 
drawn when he learned that a counter statement 
would be made. Inasmuch, however, as his statement 
has evidently been used by his biographer, if not in 
other ways, it is no more than just that the statement 
of the Justices should be printed for preservation and 
for future reference if necessary. 

It is proper to add, that Mr. Justice Grier, one of 
the majority who decided Hepburn v. Griswold, had 
tendered his resignation in December, 1869, to take 
effect the 1st of February, 1870 ; and that the decision 
in that case was not announced until Monday, the 
7th of February, The nomination to the Bench of 
Messrs. Strong and Bradley was made on the same 
day, but had been prepared the w^eek before, and had 
been under consideration for some time previous, in 
consequence of recommendations from the Bar and 
others, without any reference to the legal tender 
question. 

The statement is as follows :] 



62 



MISCELLANEOUS WRITINGS. 



Latham 



f 
The United States. J 

Deming 1 

^' 1 

The United States. J 

The very singular paper filed by the Chief Justice 
in these cases, in regard to the order of the Court, by 
which they are set down for hearing on all the ques- 
tions presented by their respective records, leaves the 
court no alternative but to present a reply in the same 
manner that the statement of the Chief Justice is pre- 
sented. 

The paper itself is -without precedent in the records 
of the Court. On the first day of this month the 
Court announced, by the mouth of the Chief Justice, 
that these cases would be heard on the 11th day of 
the month, on all the issues involved in the record. 

In making this announcement the Chief Justice did 
all that was necessary to prevent any misconception 
of his opinions by stating that he and Justices Nelson, 
Clifford and Field dissented from the order. This 
statement was placed in the records of the Court. 

The present statement [that of the Chief Justice], 
therefore, was not necessary to explain the position 
of those gentlemen, or to vindicate their action, for it 
was well understood and was assailed by no one. 

It is an effort to take the action of the Court out of 
the ordinary and usual rules which govern it in the 
simple matter of deciding when it will hear a case, and 
w^hat shall be heard in that case, and subject the Court 
to censure, because it will not consent to have the rights 



THE LEGAL TENDER CASES. 63 

of the parties in such cases controlled by the vague 
recollection of some members of the Court, presented 
only in conference, not reduced to writing, nor ever 
submitted to the consideration of counsel charged with 
the conduct of the cases. If this be a just ground of 
censure, we must submit to it, and will be content to 
bear it. 

/^n reference to the facts on which the Court acted, 
it is conceded by all that the cases, having been passed 
without losing their place on the docket, were entitled 
to a preference whenever either party should call them 
up and insist on a hearing. The Attorney-General, on 
behalf of the United States, did this on Friday, March 
25. At the same time he stated that the cases pre- 
sented the same question in regard to the constitu- 
tionality of the legal tender statutes that had been 
decided in the case of Hepburn v. Griswold, at the 
present term, and asked the court to hear argument 
on that question. Mr. Carlisle, counsel for Latham, 
was present, and reminded the Court that some 
six weeks before he had asked that his case might be 
set down for hearing, and that he now wished for an 
early hearing, but hoped that the legal tender question 
would not be reconsidered in his case. 

He did not at that time intimate in any manner 
that there had been any agreement of counsel, or any 
action of the Court, which precluded that question in 
bis case. 

The next day being conference day, the Court acted 
on the motion of the Attorney General ; but on Mon- 
day morning, before it could be announced, the Chief 
Justice produced a letter from Mr. Carlisle to him^ 
remonstrating against reopening the legal tender ques- 



64 MISCELLANEOUS WRITINGS. 

tion in his case, and insisting that he had a right to 
expect that the case oi Hepburn v. Griswold would, as 
to that point, decide his case also ; but he did not 
state in that letter that any order of the Court had 
been made to that efifect, or any agreement of counsel 
verbal or otherwise. 

This letter of Mr. Carlisle, the only written docu- 
ment, paper or statement ever presented to the Court 
before its order was announced, as a foundation for 
refusing to hear the legal tender question in the two 
cases, was never filed with the clerk, and cannot now 
be found by us. 

The Court, in deference to Mr. Carlisle's statement, 
made an order that on Thursday, the 31st of March, 
the whole matter should be heard in open Court. On 
that day the Attorney-General, who had been shown 
Mr. Carlisle's letter, appeared and insisted on his 
motion. Mr. Carlisle opposed it, and in argument 
gave his history of the cases in this Court. He also 
argued that from that history he had a right to expect 
that whatever should be the judgment of the Court in 
Hepburn v. Griswold as to the constitutionality of the 
legal tender acts, should conclude that matter in his 
case. But he did not state or rely on any agreement 
with counsel of the government of the one case by the 
other, or any express order of the Court to that effect. 

Mr. Merriman, the senior counsel in Deming's case, 
was present at this argument. He took no part in it. 
He made no objection to the argument of the legal 
tender question in his case, and did not then claim, nor 
has he ever claimed in court, that that question was 
precluded by any action of the Court, or agreement of 
counsel. 



THE LEGAL TENDER CASES. - 65 

On full consideration of all that was then before it, 
the Court announced on Friday morning, the 1st of 
April, that the two cases would be heard on all the 
questions presented by the records on Monday, the 
11th, ten days thereafter ; and at the same time the 
Chief Justice announced the dissent of himself and the 
other Justices already mentioned, to this order. 

When that day arrived, a letter was presented from 
Mr. Carlisle, dated in this city, of the Saturday before, 
in which he said he had not had time to prepare for 
the argument, and that he had an engagement to try 
a case in New York on Tuesday, which he had not 
been able to postpone, and again urged the injustice of 
a reargument of the legal tender question in his case, 
and stated that he understood when his case had been 
passed, that it would abide the decision in Hepburn v. 
Griswold. A telegram was also read stating Mr. 
Merriman's illness. The Court from the bench post- 
poned the hearing for one week. 

Since that time the Chief Justice has received a letter 
from Mr. Norton, former Solicitor of the Court of 
Claims, who once had some charge in that capacity of 
these cases, in which he states, that when the cases 
were continued in March, 1868, he understood that 
they would be governed as to the legal tender ques- 
tion by the decision of Hepburn v. Griswold, 

Of both these letters, now the only papers on file 
in regard to the matter, it is to be observed — 

1. That they were presented after the Court had 
appointed a day for hearing all that might be said for 
or against the motion, and after both parties had had 
a full hearing, and after the Court had, on full consid- 
eration of all that was before it, fixed the day for 



66 MISCELLANEOUS WRITINGS. 

hearing, and decided to hear the whole matter in issue. 
Of Mr. Norton's letter"it may be further said, that it 
was made after Mr. CarHsle's two efforts to prevent a 
hearing had both been considered and overruled, and 
is made by a gentleman not now engaged in the cases, 
without verification, and without notice to any party, 
or counsel in the case. 

2. That neither of them assert that any agreement, 
contract or promise \vas made by the counsel of the 
United States, that Hepburn v. Griswold should con- 
trol these cases in any matter of law whatever. 

We do not doubt that counsel for appellants and 
counsel for the United States believed, and in that 
sense understood, that the judgment of the Supreme 
Court in Hepburn v. Griswold, and the other legal 
tender cases argued at the same time, would establish 
principles on that subject that v^ould govern the cases 
now under consideration, and all other cases in which 
the same questions might arise. 

This understanding was no more than the expecta- 
tion, usual and generally -well founded, that a principle 
decided by this Court will govern all the cases falling 
within it. But this expectation must be subordinated 
to the possibility, fortunately rare, that the Court may 
reconsider the questions so decided ; and confers no 
absolute right. 

We have thus far considered only what occurred 
in open Court since the motion of the Attorney-General 
vv^as made to take up these cases ; and in what has 
been said the Court, consisting of Justices Swayne, 
Miller, Davis, Strong and Bradley, all concur. 

But the paper, to -which -we are replying, under 
takes to give a history of the connection of these two 



THE LEGAL TENDER CASES. 67 

cases with certain others, involving the legal tender 
question, so much at variance with the records of the 
Court, and with the recollections of the three Justices 
of the Court first above named (the other two not 
then being members of the Court), that we do not feel 
at liberty to permit it to pass in silence. 

This statement invades the sanctity of the confer- 
ence room, and in support of its assault upon the 
Court, does not hesitate to make assertions which are 
but feebly supported by the recollections of a part of 
the four Judges who join in it, but which are incon- 
sistent with the record of the Court, and are contra- 
dicted by the clearest recollections of the other three 
Judges who then composed a part of the Court, who 
oin in this answer. 

It is attempted, by speaking of these cases as 
two out of nine, which the Court constantly had in 
view as involving the legal tender question, to sustain 
the inference, that they \vere to be decided with the 
others, and were submitted to the Court, so far as the 
legal tender question was concerned, at the same time. 
Now, the first and only time the legal tender cases 
were grouped together in any order of the Court was 
on the 2d day of March, 1868, when the following order 
was made of record : 



No. 89. S. P. & H. P. Hepburn v. Henry Griswold, 
No. 225. Frederick Bronson v. Peter Rodes. 



} 



" Ordered by the Court, That these cases stand 
continued for re-argument by counsel at bar on the 
first Tuesday of the next term, and that the Attorney 
General have leave to be heard on the part of the 
United States." 



68 MISCELLANEOUS WRITINGS. 

"No. 35, Mandelbaum v. People of Nevada. 
" No. 60. The County of v. The State of Oregon. 
"No. 67. John A. McGlynn, Ex'r, &c., v. Emily > 

Magraw, Ex'trix. 
"No. 71. Joseph C. Willard v. Benj. 0. Tayloe. 

" Ordered by the Court, That these causes stand con- 
tinued to the next term, with leave to counsel to 
reargue the same if they see fit on any question com- 
mon to them and to Nos. 89 and 225." 

The Chief Justice says that there were nine of these 
cases in all, which v^ere to be governed by the decision 
of the Court made on the general argument in regard 
to legal tender. Here are six of them grouped in these 
two entries standing together. If Latham's and 
Deming's cases stood on the same agreement, or the 
same order, why were they not included ? It will not 
do to say that they were carelessly omitted, for the 
order is evidently drawn Avith particularity, and there 
can be no doubt thatit includes all that it was intended 
to include. 

Nor will it do to say that these cases could not be 
included because they had other questions besides legal 
tender, for the cases of Willard v. Tayloe and Mandel- 
bautti V. Nevada, which are in the order, included other 
questions, and were finally decided without touching 
that question. The case of Horwitz v. Butler, which 
is necessary to make out the nine alluded to, although 
it involved nothing else but legal tender, was argued 
by itself after Bronson v. Rodes was decided. There 
was, therefore, evidently no general agreement or 
order, that cases not named should abide those that 
were, because they involved that question. 

It is said that subsequently to the decision of 
Hepburn v. Griswold, these cases " were called on sev- 



THE LEGAL TENDER CASES. 69 

eral occasions, and it was again stated by the Chief 
Justice from the bench that the legal tender question 
having been determined in the other cases would not 
be again heard in these." 

This statement is, as we are satisfied, founded in 
an entire misapprehension. If any statement had 
been made from the bench that no argument would 
be heard in these cases of the legal tender question, it 
would certainly have attracted the attention of the 
Judges who did not agree to that opinion, and would 
have met v^^ith a denial on their part so emphatic as 
to be remembered. 

The cases now under consideration were numbered 
six and seven of the docket of this term. They had, 
therefore, as the records of the Court show, been called 
and passed on the Sth December, two months before 
the announcement of the decision of Hepburn v. Gris- 
wold, w^hich was February 8. 

It further appears, that on the 10th December the 
Attorney General moved to dismiss the appeal in 
Latham's case because it had not been taken in due 
time. The opinion of the Chief Justice is entered of 
record overruling this motion, because, though the 
appeal was not allo^ved within ninety days, it had 
been prayed -within that time. In all these orders no 
hint is given that these cases were to abide the judg- 
ment in Hepburn v. Griswold. 

Very soon after the decision of Hepburn v. Griswold, 
Mr. Carlisle called attention to the Latham case, and 
asked that an early day be assigned for its hearing. 
The Chief Justice was about to do this in open Court, 
when Mr. Justice Miller requested him to take the 
matter into conference. When the motion w^as called 



70 MISCELLANEOUS WRITINGS. 

in conference, Mr. Justice Miller said that the case 
involved the legal tender question, and that he hoped 
it would not be set for hearing until the two vacancies 
on the bench were filled, as nominations were then 
pending for both of them. No objection was made to 
this, and the motion of Mr. Carlisle w^as postponed 
indefinitely. The Chief Justice remarked, as those of 
us who were present well recollect, that he considered 
the legal tender question as settled by Hepburn v. 
Griswold, as far as it went, but none of the Judges 
gave any intimation that there was anything in the 
history of these which precluded that question from 
being considered in them. If it could not, there was 
no reason for postponing their hearing for a full bench, 
as w^as done, for they are otherwise quite unimport- 
ant, either in principle or amount, and were entitled 
to a speed}'- hearing, as they had been long delayed. 

Conceding, as we do freely, that our brethren be- 
lieve that such an order or statement was made 
verbally, should it govern our action ? 

We cannot consent to this, because if any order or 
statement -was made orally, unless it w-as reduced to 
record, or is assented to or admitted by the counsel 
for the United States, it is no sufficient legal ground 
for refusing to hear the appellee on any defence found 
in the record of these cases. 

In support of this w^e hold the law to be that 
without some order of Court made of record, or some 
vsrritten stipulation signed by the party or his counsel, 
or some verbal agreement of the parties established to 
the satisfaction of the Court, no party can be deprived 
of the right to any defence in this Court which the 
record of his case presents, j 



A 



THE LEGAL TENDER CASES. 71 



Much stress is laid in the paper we are con- 
sidering upon the long dehberation, the clear majority 
and the liberality of the Court in giving time to the 
minority to file the dissent in Hepburn v. Griswold, 
and we are freely told the steps in conference which led 
to the final result. 

The minority in that case are profoundly impressed 
with the belief that the circumstances of tliat decision, 
if well understood, would deprive it of the weight 
usually due to the decisions of this Court. The cases 
had been on hand eighteen months or more. There 
\va.s no pressure for a decision. There was one vacancy 
on the bench. It was believed that there would soon 
be another. Under these circumstances the minority 
begged hard for delay until the bench was full. But it 
was denied. When, after all this argument and pro- 
tracted consideration, the case was taken up in confer- 
ence, and was there discussed for three or four hours, in 
which discussion every Judge took part, the vote w^as 
taken and the Court w-as found to be equally divided 
on affirming or reversing the judgment of the Court of 
Appeals of Kentuck}^ " Before the conference closed, 
however, the vote of one of the Judges who had been 
for reversing the judgment was changed. The circum- 
stances under v/hich this vote -was changed were very 
significant, but we do not deem it proper to state 
them here. Without that change no opinion could 
have been rendered holding the legal tender statutes 
unconstitutional . 

The question thus decided is of immense importance 
to the government, to individuals and to the public. 
The decision only partially disposed of the great ques- 
tion to which it related, and has not been received by 



72 MISCELLANEOUS WRITINGS. 

the profession or by tlie public as conclusive of the 
inatter. If it is ever to be reconsidered, a thing which 
we deem inevitable, the true interests of all demands 
that it be done at the earliest practicable moment. 

We did not seek the occasion, but when the case 
seemed fairly before us v^e could not shrink from our 
duty as we understood it. 

We could not deny to a party in Court the right 
v^4iicli the law gave him to a hearing on all the defences 
which he claimed to have. When, on the other hand, 
the rales of the Court did not admit of a rehearing in 
the case of Hepburn v. Griswold, we did not attempt 
to strain or modify those rules to reach the question. 
In this case, as in all others, we have endeavored to 
act as the la^w and our duty required. 

The foregoing paper of eighteen pages [in the man- 
uscript] was prepared and agreed to as the reply of 
the Court to a paper filed by the Chief Justice on behalf 
of himself and Justices Nelson, Clifford and Field. 
That paper has been withdrawn by them from the files 
of the Court, and this is, therefore, not filed. 

We all concur in the statements of the foregoing 
paper as to the reasons for our action in the matter 
to which it refers, and the statement of facts yve declare 
to be true so far as they are matters which took place 
while we were respectively members of the Supreme 
Court. 

Washington, April 30, 1870. 

n. h. swayne. 
Sam. F. Miller. 
David Davis. 
W. Strong. 
Joseph P. Bradley. 



THE LEGAL TENDER CASES. 73 

[Note. — The original draft of the statement, as 
drawn by Justice Miller, from the asterisk on page 71, 
concluded in the words printed below^. But, on con- 
stiltation with the other Justices at the time it was 
thought best to omit it, as Justice Grier was still 
living, and might be pained if it should come to his 
knowledge. Justice Miller, however, preserved it, and 
placed it in the same envelope v^dth the statement as 
modified, where it was found after his death. It was 
as follows :] 

* This would have affirmed the judgment, but settled 
no principle. 

An attempt w^as then made to convince an aged and 
infirm member of the Court that he had not understood 
the question on which he voted. He said that he 
understood the Court of Appeals of Kentucky had 
declared the legal tender law unconstitutional, and he 
voted to reverse that judgment. As this was true, the 
case of Hepburn v. Griswold was declared to be 
affirmed by a Court equally divided, and we passed to 
the next case. 

This was the case of McGlynn, Ex., v. Magraw, 
and involved another aspect of the legal tender ques- 
tion. In this case the venerable Judge referred to, for 
whose public services and character we entertain the 
highest respect, made some remarks. He was told 
that they v^rere inconsistent with his vote in the former 
case. He vt^as reminded that he had agreed with a 
certain member of the Court in conversation on 
propositions differing from all the other Judges, and 
finally his vote was obtained for affirming Hepburn v. 
Griswold, and so the majority, whose judgment is now 
said to be so sacred, was obtained. 

To all this we submitted. We could do nothing 
else. In a week from that day every Judge on the 



74 MISCELLANEOUS WRITINGS. 

bench authorized a committee of their number to say 
to the Judge who had reconsidered his vote, that it 
was their unanimous opinion that he ought to resign. 

These are the facts. We make no comment. We do 
not say he did not agree to the opinion. We only ask, 
of what value w^as his concurrence, and of what value 
is the judgment under such circumstances ? 

That question thus decided is of immense import- 
ance to the Government, to the public, and to indi- 
viduals. The decision only partially disposed of the 
great cjuestion to which it related, and has not been 
received by the profession or by the public as conclud- 
ing the matter. If it is ever to be reconsidered, a thing 
which -vv^e deem inevitable, the best interests of all 
concerned, public and private, demands that it be done 
at the earliest practicable moment. 

We have not sought the occasion, but when the 
case is fairly before us, if it shall be found to be so in 
these cases, we shall not shrink from our duty, what- 
ever that may be. For the present, we believe it is 
our duty to hear argument on this question in these 
cases. 

Whether the judgment of the Court in Hepburn v. 
Griswold shall be found by the Court to be conclusive, 
or whether its principles shall be reconsidered and 
reversed, can only be known after the hearing ; and in 
the final judgment of the Court, whatever it may be, 
we are satisfied there will be acquiescence. 

At all events, the duty is one which we have not 
sought — which we cannot avoid. 



PERSONAL, 



POLITICAL, HISTORICAL 



AND 



PHILOSOPHICAL. 



BURR, AARON. 



I have just finished (November 29, 1837) the perusal 
of the second volume of Davis's Memoirs of Aaron 
Burr. I took up that work with the most bitter 
prejudices against Burr, but I must confess that a 
perusal of it has very much softened, if not entirely 
eradicated, my detestation of his character. Burr, no 
doubt, was a persecuted man. He had intrigue, per- 
haps too much like Pope, he practiced it when a 
straightforward course would have answered his turn 
as well. This rendered him suspected ; being suspected, 
made him suspicious ; being thus suspicious and sus- 
pected, his conduct toward General Hamilton, on the 
one hand, and the conduct of the administration 
tow^ards him in relation to the liberation of Mexico on 
the other, are accounted for. He went too far in call, 
ing out General Hamilton, although he received serious 
provocations which had never been caused, nor revenged 
by similar conduct on his part. He was above abusing 
a rival, but he would take all honorable means of 
triumphing over him. Hamilton was not above abus- 
ing a rival ; but he would not go to such lengths, 
perhaps, to secure a triumph. As to his being guilty 
of treason in 1806 and 1807, there is very little 
ground to imagine such a thing. Aaron Burr was not 
that devil incarnate which I had supposed him to be. 

The letters which passed between him and his 
daughter are some of the finest models of epistolary 
writing I ever saw. I think them superior to Lady 
Mary W. Montague — not in mind, nor in polish, nor in 



78 MISCELLANEOUS WRITINGS. 

literary merit, nor in refinement, but in that playful 
ease, and in that eternal sprinkling of the purest attic 
salt which should characterize the epistolary. They 
are perfect specimens of letters. Everybody can see 
that the author of the book has crowded as many of 
these letters into it as he possibly could, in order to 
exhibit Burr in his most attractive light — his private 
relations — and thus abstract the attention of the 
reader from the events of his public life. Though, on 
a perusal of the book, one could not point out any 
particular event of Burr's public life on which the 
author could have been more full than he has been. 
On the whole, the vsrork is a good one, in my view, and 
will tend to repress the imputation of sinister and vin- 
dictive motives to public men, by teaching the lesson 
that a man may be hunted down as a monster in 
society, who, to his own intimate friends, exhibited 
the tenderest, noblest feelings of our nature. 



A LOVE LETTER. 

September 6, 1838.—" This world has not so 
many charms for me as it once had. I have been 
tossed on its ruder surges so long that I have learned 
to look for pure and abiding happiness in some more 
pure and abiding world. But life must be spent here . 
duties must be discharged here, and I should be 
ungrateful to my Maker if I did not believe that He 
has provided me with some source of happiness con- 
nected with the situation in v^hich He has seen fit to 
place me. But, where is happiness to be found. She 



ESSAYS— LETTERS. 79 

is not seen in the giddy world of fashion, nor does she 
smile on the plumes of vanity and conceit. She is 
social in her nature, and domestic in her habits. Sweet 
in her disposition, her smile is bewitching. Tenderness 
beams in her eyes, and affection throbs in her heart. 
Her own fireside is her empire ; beyond it her wishes 
never extend. Good sense and intelligence are her 
attendants ; religion is her friend." Such is the picture 
which I have often drawn of the purest earthly bliss— a 
picture which has had its counterpart in real life, but 
which I have had little hope ever to realize. 

(Note.) This extract is part of a love letter which, however, was 
never sent to the person for w^hom it was intended. 



ADMISSION TO THE BAR. 

December 29, 1839.— On Wednesday evening, 

November 13, 1839, I was examined, at Trenton, before 

the Justices of the Supreme Court of New Jersey, on 

application for license to practice law ; and on the 

next day, licensed and admitted to practice as an 

attorney at law and solicitor in chancery in said State. 

The following Friday I started for Albany, and after 

staying at home nearly five weeks, returned to 

Newark Wednesday, 18th inst., where I still remain, 

undecided where to settle. Whilst at home, I witnessed 

much of the Helderberg disturbances, which elicited a 

call from the Governor of New York on the militia to 

suppress them. No blood was shed but that of divers 

pigs and fowls. 

(Signed) J. P. BRADLEY. 



80 MISCELLANEOUS WRITINGS. 

A PICTURE. 

George B. Corkhill, of Washington, D. C, lately 
purchased an engraving, a little old and rough look- 
ing, exhibiting a Judge with ass's ears sitting on a 
tribunal, with Justice blindfolded on his left. Before 
him an old man brings forward a female figure, who 
holds a torch in one hand, and w^ith the other clutches 
by the hair a little imp, who makes wry faces and 
kicks about resistingly. Behind the female figure are 
some attendants of hers, one of whom carries a drag- 
net on her shoulder. Guards stand at the door half 
concealed. In the extreme left hand upper comer an 
open window shows a demon in the distance on the 
wing, dragging away a female figure, as if it were 
a spirit taken to perdition. The engraving has a 
legend, as follows : 

AUrahit insonte perjura calumnia Apelle. 
In jus immiscens fanda nefanda simul 
Auriculis judex insignis tepora aselli 
Jus pariter reddit coUite cu comite 
Temporis at demum quae fertur filia seros 
In lucem profert qui latuere dolos. 

Which may be freely translated thus : 

" False swearing Calumny drags into Court 
Apelles innocent. The stupid Judge, 
Confounding Right and Wrong, his temples crowned 
With Ass's ears, with blindfold Justice by. 
Awards alike to both — the Good — the Bad. 
Time's daughter (Truth), who now at length is brought, 
Reveals the hidden Fraud, alas, too late ! 

The moment seized by the artist seems to be that 
at which Truth, with torch in hand, and clutching by 
the hair the struggling imp, representing the fraud 



ESSAYS— LETTERS, 81 

that has lain concealed, and which has just been 
dragged from the water, reveals to the Court the 
awful mistake it has made. The Judge seems greatly 
surprised, and poor Justice hangs do\\Ti her head in 
shame. The old man who brings " Truth " forward 
may be either " Time " or the agonized father of the 
victim, who was unjustly condemned, and whose spirit 
is seen to the left carried away by a demon. The 
drag-net of " Truth," held by one of her attendants, 
shows her perseverance in finding out the fraud, and 
reminds us hov^ all hidden things are brought to light 
by her indefatigable efforts, even from the bottom of 
the sea. 

The engraving has inscribed on a slab or caryatides, 
in the body of the piece, this note : " Georgius Ghisi, 
Mant. f 1560." That is, executed by George Ghisi of 
Mantua 1560. At the foot is inscribed on a scroll, 
" Luca Penis, in." That is, " Luca Penni's design." 
Luca Penni was bom 1500, and was a scholar of 
" Raphael." Ghisi of Mantua was a generation later. 
In Spooner's Biographical history of the Arts, under 
the title " Ghisi, George," is a list of some of Ghisi's 
engravings, and amongst others, this, " An allegorical 
subject representing a Judge on his tribunal with ass's 
ears, after Luca Penni.^^ The engraving purchased by 
Mr. Corkhill is probably a French copy. I judge that 
it is not an original, because wanting the artist's 
monogram, and because it has an imprimatur, "cum 
privilegio regis." It may have been copied in the 
reign of Louis XIV or XV. 

(Signed) J. P. BRADLEY. 

June, 1882. 



82 MISCELLANEOUS WRITINGS. 

201 " I " Street, June 9, 1882. 
Dear Mr. Corkhill : 

In looking over my version of the legend of your 
engraving, it occurs to me that the " immiscens fanda 
nefanda simul " may be attributed to the Prosecutor, 
" Calumnia," rather than to the Judge, whose greatest 
crime appears to be his stupidity. Correcting it on 
this theory, the rendering would be : 

False swearing Calumny drags into Court 

Apelles innocent, and guileful pleads, 

Together mixing up things Right and Wrong. 

The Judge with ass's ears on temples grown. 

Like judgment gives, with blind associate by, 

Time's daughter (Truth), who now at length is brought. 

Reveals the hidden fraud, alas, too late. 

This is more liberal, and seems to be more in keep- 
ing with the original. 

Yours truly, 

(Signed) JOSEPH P. BRADLEY. 



TRANSLATION OF LUCAN'S EULOGY ON POMPEY. 

Casta domus luxuque carens, corruptaque ninquam 
Fortuna domini, clarum et venerabile nomen 
Gentibus, et multum nostrae quod proderat urbi. 

A household chaste, of luxury devoid 

And by its master's fortune uncorrupt. 

A name renowned and venerated wide 

Among the peoples, and that hath enhanced 

Our city's weal. 

Lucan's Pharsalia, IX. 

1884. 



ESSAYS— LETTERS. 83 

TO MY SISTER " MARY," MARCH 14, 1886. 

The clouds are gathering, soon the night will come, 

And we shall reach our long-expected home. 

But from the mile post marked with " Seventy-three " 

I hail you, sister, where you follow me ; 

Six stages back is all the space between, 

For you, as I, the best of life have seen ; 

The most, if not the best, for who can know 

Which is the best for mortals here below. 

Youth, hope and fancy, or the sober close 

Of life's long trials settling to repose. 

Lit up by gleams reflected from that shore 

Where wait our loved ones who have gone before ? 

They wait, they beckon, why should we withstand 

The law that draws us to that happy land ? 

Then, cheerful, onward, let us hence pursue 

The journey left that hides that land from view. 

(Signed) J. P. BRADLEY. 



ANSWER TO A REQUEST FOR A MOTTO. 

Washington, 19th Sept., 1887. 
Dear Sir : 

I know of no motto truer or more to be studied bj 

a young man than the following : 

Haec sunt Fortunae optima dona: 
Sana mens in corpore sano, 
Sedulus labor, probitas pura. 

The best gifts of fortune are these: 
Health of body, a sound understanding. 
Pure integrity, industry untiring. 

Yours truly, 

(Signed) JOSEPH P. BRADLEY. 

Mr. Ellery S. Ayer, 

Boston. 



84 MISCELLANEOUS WRITINGS. 



DREAMLAND. 



I do not know whether I am singular, but I have 
a dream-world to which I often repair in sleep. I do 
not refer to those phantastic scenes and incidents 
which have no rational connection or cause, and which 
often attend our unquiet slumbers, and leave little 
trace behind, or any deep impression. My dream- 
world is very different. It has generally the same 
phantasmagoria of surrounding objects and scenery, 
and is altogether a pleasant and homogeneous system 
of things. The singularity of it is, that it has this 
constant sameness after the lapse of years. The prin- 
cipal scene is located in a city, having a great resem- 
blance to the City of Newark, where I formerly resided 
and in this underworld city I am always residing and 
have an office in the business part of the town, on 
the ground floor, fronting on the main street ; but it 
is usually closed in consequence of my prolonged 
absences. I sometimes go in to look over some old 
and rare books that I keep there — books the like of 
which I never saw in my waking moments. One of 
these books is at least a yard in height, and half a 
yard in width, and at least four inches thick. The 
binding is very old and heavy, the comers being 
much frayed. The print is large and in double, and 
sometimes treble, columns on the page. It is hard to tell 
what the subject of it is. It contains chapters on law, 
and on chronology and on philosophy and on religion, 
and I find some very curious things in it, some of 
which, if I get time, I will relate. There are other 
old books of various sizes, some nearly as large as 
the one I have described, and thence ranging down to 



ESSAYS— LETTERS. 85 

ordinary quartos and royal octavos. I have generally 
some anxiety when I visit the office to see whether 
any of the books have been stolen. I sometimes 
find them disarranged, but generally put them in 
their proper places again. My principal trouble arises 
from the improvements that are often going on in the 
neighborhood. They have been building a row of 
brick houses in the rear, on the next street, and the 
lots join. I am constantly fearful lest the workmen 
will come on to my lot and get into my back windows 
and carry off some of my books, and then sometimes 
when I am absent, and one of my clerks, or young 
men, occupy the office part of the day, other lawyers 
come in and borrow the books ; and some forget to 
return them. In going up and down the street, I meet 
many of my old acquaintances, long since dead, and 
have many interesting conversations with them. I 
visit this dreamland, sometimes as often as once a 
month, sometimes only after an interval of a year 
or more, but I always find it the same, and the old 
books the same. The impression of its reality has 
become so strong that even in my waking moments 
I sometimes imagine for an instant that I possess 
those old books somewhere, and do not recover from 
the hallucination until I begin to inquire with myself 
v^here they are. 

Washington, January 27, 1889. 



86 MISCELLANEOUS WRITINGS. 



THE MARITAL RELATION. 

ASSOCIATE JUSTICE BRADLEY IN THE "NORTH AMERICAN 
REVIEW" FOR DECEMBER, 1889. 



As marriage and the family institution constitute 
the foundation and chief corner stone of civil society, 
it is of the greatest moment that the marriage-tie 
should never be dissolved save for the most urgent 
reason. I cannot assent, how^ever, to the doctrine 
that it should never be dissolved at all. Mere separa- 
tion, though legalized, would often be an inadequate 
and unjust remedy to the injured party, who would 
thus be subjected to an enforced celibacy. This might 
suit the notions of those who regard celibacy as a 
virtue, but would fail to approve itself to those -who 
take a voider and more charitable view of human 
nature. The divine law, Avhich says, "What God has 
joined together let not man put asunder," immediately 
adds an exception, " save for the cause of fornication," 
showing what the law of nature dictates, that the case 
is not governed by any iron rule of universal application. 
The la-w, ** Thou shalt not kill," has its necessary excep- 
tions, a disregard of which v\rould render it mischievous 
in a high degree. I know of no other law on the 
subject but the moral law, which does not consist in 
arbitrary enactments and decrees, but is adapted to 
our conditions as human beings. This is so, whether 
it is conceived of as the will of an all-wise Creator, or 
as the voice of humanity, speaking from its experience, 
its necessities and its higher instincts. And that law 
surely does not demand that the injured party to the 



ESSAYS— LETTERS. 87 

marriage vows be forever tied to one who disregards 
and violates every obligation whieli it imposes ; to 
one with whom it is impossible to cohabit ; to one 
whose touch is contamination. Nor does it demand 
that such injured party, if legally free, should be 
forever debarred from forming other ties through 
which the lost hopes of happiness for life may 
be restored. It is not reason, and it cannot be 
law, divine or moral, that unfaithfulness, or walful 
and obstinate desertion, or persistent cruelty of 
the stronger party, should afford no grounds for 
relief. The most rigid creeds, to the contrar\% have 
found methods of dispensation from the theoretical rule. 
And if no redress be legalized, the law itself v^ill be set 
at defiance, and greater injury to soul and body will 
result from clandestine methods of relief. Yet so desir- 
able is the indissolubility of marriage as an institution, 
so necessary is it to the happiness of families and the 
good of society, so pitiable the consequences that often 
flow from a dissolution, that every discouragement 
to such a remedy should be interposed. Not only 
should the Judge take every care to see that just 
cause exists, but that no other remedy is possible. 
No jugglerv or privac}^ should be tolerated, however 
high in station the parties may be. Investigation of 
the truth should be thorough and open, and should 
be a matter of public concern, participated in by the 
pubHc representative of the law. It should be regarded 
as a quasi-criminal process, if not accompanied with 
criminal sanctions. Only serious and even sever, 
methods of administering the law will be sufficient t 
repress the growing tendency of discontented partie ■ 
to rush into divorce courts. 



88 MISCELLANEOUS WRITINGS. 



RUTGERS' ALUMNI DINNER. 

LETTER OF "REGRET" SENT BY JOSEPH P. BRADLEY, DATED 
WASHINGTON. FEBRUARY 26, 1891. 



L. Laflin Kellogg, Esq., 

Dear Sir : — I am sorry that I cannot be present 
to-morrow evening to join our alumni at their annual 
dinner, and to answer personally to the toast of " The 
Bench." I can only say in this circumscribed way, 
that "The Bench" of the forum is quite as uneasy 
and anxious a seat as "The Bench" of the country 
schoolhouse, or the old stone college, without the oppor- 
tunity of cutting your name on it vv^ith a jackknife. 
That must be done with a different -weapon. How 
deeply we all sympathize with each other on looking 
back, with a sigh, to those happy days w^hen the only 
care ■was to con a lesson well, or to make a creditable 
recitation ; and yet, as the boy is father to the man, 
so the college is mother — alma mater — to every branch 
of professional life, looked back to, looked up to as 
the source of all that is good or excellent in years of 
rij)er development. But the standards of attainment 
and approbation, how different ! It is not now a 
question of Greek roots, or mathematical abstractions, 
w^ith anxious desire to win a professor's smile ; it is a 
question of honest dut}^ performed in the hard strug- 
gles of life ; of wisdom daily acquired ; of " increasing 
in favor with God and man," each of us squaring his 
life, or trying to do so, by some standard appropriate 
to his calling ; the merchant, by probity and diligence 
in business ; the phj^sician, by the most advanced 



ESSAYS— LETTERS. 89 

analysis of human ills and their remedies ; the divine, 
by the lofty ideals of sacred literature and the moral 
manifestations of modem society ; the lawyer, by 
studying the fountains of jurisprudence, as applied to 
the phases of every-day business ; the jurist, by the 
lights of truth and justice, from whatever source 
derived, and all with a watchful world for spectators 
and audience and judges. 

Before us, on the Bench, stands the awful Goddess 
of Justice and Law, w^atching every word and w^eigh- 
ing everj" decision ; if we make a mistake, sending a 
chill through every vein ; if we decide right, rewarding 
us only with a kindly nod of approval, but leaving us 
to incur small thanks, and often deep curses, from 
those whose cases we are called upon to determine. 
And, how fearful is the abiding consciousness, that, 
however just our decisions may be, wretchedness, 
poverty, ruin on one side or the other, may hang on 
our w^ords. Rejoice, fellow Alumni, for j^our freedom 
from such trials. Your pursuits do not necessarily 
involve, as our functions often do, the ruin of fortunes 
and the destruction of all hope in the world. 

So the Bench greets you with the wish that you 
may never have occasion to approach it, except as 
idle and disinterested spectators, or with an invitation 
to another "Alumni" dinner. 

Let me give you something new and fresh : " Sol 
justitiae et occidentem illustra." 



90 MISCELLANEOUS WRITINGS. 



EQUALITY. 



" We hold it to be self-evident that all men are 
created equal." This is our creed as a nation. 
But the question of importance is, in what respect 
equal ? Not equal in mind, for this experience teaches 
us to be untrue. Not equal in compared vigor, for 
this is contrary also to experience. Not equal in the 
dispensations of Providence, nor equally favored by 
fortune. In fine, there is scarcely one thing in which 
-we may be said to be equal. In what sense is it, then, 
that vv^e are declared to be equal by the Declaration of 
Independence ? The answer must be, politically equal. 
But again, wherein does this political equality consist ? 
Does it consist in the distribution of wealth, and a 
common possession of the comforts and elegancies of 
life ? Certainly not ; or else the great apostles of 
our liberty ; our Washington, our Franklin, our Adams, 
our Jefferson, were traitors to their creed, and selfishly 
dismissed from their intentions the design of realizing 
the great doctrines which they so solemnly avowed. 
Besides, it cannot be in this sense that they meant ; 
for in this sense it would be nonsense and vanity. 
The luxuries of life do not consist merely in dollars 
and cents. These, it is true, might be distributed 
v^ith a comparative ease amongst the expectant throng. 
But there are your music, jonr paintings, your other 
trophies of art ; there are your stores of literature, 
your black letter, your dead letter, your antiquities, 
your offsprings of the muse, there are your refined 
emotions, your generous feeling, your whole aspira- 
tions — all these, and ten thousand more are real, bona- 
fide luxuries, that not only occupy, but enchant 



ESSAYS— LETTERS. 91 

hundreds and thousands who are susceptible of what 
they are calculated to inspire. Now, if one class of 
luxuries may be possessed in common, there is no 
reason why every class may not be — as, if we are all 
created equal, it were unjust that any should have at 
their command sources of delight wliich are denied to 
the rest. But there are many species of luxury, those 
in particular which I enumerated, which the great 
mass of mankind are incapable of enjoying, and of 
which they ever would be incapable, how equably 
soever the grosser attendants of prosperity might be 
distributed. Hence an equalization of w^ealth would 
not be followed by an equal power of enjoying life 
(which is the object of wealth), and the very object 
proposed would never be attained. Further, a dull 
equalization of wealth would smother enterprise^ 
produce listlessness, and induce a man, instead of 
aiming to support himself by his own exertions, 
to depend for his support upon the rest, conscious 
always that however indolent and inactive him- 
self might be, he would still share an equal 
portion with his fellows — with even the most 
industrious of them ; for any attempt to punish 
inactivity by subjecting it to want, would be an 
admission of the principle that industry should be 
rewarded, and this is the great principle that supports 
the present machinery of society. Leaving then the 
notion that community of wealth is meant by the 
equality alluded to in the Declaration, what else, may 
we ask, can it mean ? Does it mean social eqality ? 
Such a state would make all the classes (I do not say 
orders) of society commingle their intercourse ; would 
introduce the cobbler into the most elegant drawing 



92 MISCELLANEOUS WRITINGS. 

room to take a cup of tea with the gayest belle of the 
town, or else, perhaps, to debate with grave Senators 
on the affairs of State. Could this have been meant ? 
Certainly not. This is the least possible of all mean 
ings that could be attached to the term. Men will 
choose their own company in whatever state of society 
you may choose to place them. This is the last 
vestige of liberty with which they are willing to part, 
and any state of society which forbids a man this 
privilege, I shall neither contend for nor against. In 
what, then, can this political equality consist ? Does 
it consist in each man having an equal voice in the 
civil government of his country ? This is what I con- 
ceive it to be. But this is exercised originally, and 
only so. After the elements of society are once organ- 
ized in the least, after some one has exercised the 
privilege (which belongs equally to all) of nominating 
a chairman or a president in any meeting of the 
citizens— after that moment— after the choice of that 
chairman has been approved, much of the authority, 
which till then was equally exercised by all, is now 
confided to him. If this meeting adopt a constitution 
for the regulation of their conduct, a constitution 
which any soul of them had the privilege of proposing, 
then and thereafter that constitution is charged with 
much of the authority which, till then, had existed only 
in the people. Thus, by public decrees and constitutions, 
the people deposit a certain portion of their own 
power with particular individuals, and these individuals 
have, then, a right which the multitude has not, of 
making laws and administering government. Rights, 
it will be observed, are delegated to them. They are 
not made a privileged class. We have no orders of 



ESSAYS— LETTERS. 93 

society. No privileged classes. We have a plenty of 
classes, and this class is one of them. It is made their 
business and their dutv (they might have declined if 
they pleased) to attend to public matters. It all 
arises from the necessity of the division of labor. All 
cannot rule, nor can all be ruled. All cannot plo-w, 
nor can all sow, nor reap. No more can all neglect 
such employments, else the race would become extinct. 
Each has his business to perform, his part to act. It 
is a duty he owes to the rest as well as to himself. 
In this way, all are equally dependent, equally necessary, 
to the body politic. Hence, all have an equal right to 
govern the whole where that right has not been pre- 
viously conveyed away. This is Political Eqality. 



POLITICAL ECONOMY. 

Prof. Perry defines Political Economy to be the 
Science of Exchanges, or, in other w^ords, the Science 
of Value. This does not accord v^ith my notion of 
the science. Exchange and value have much to do 
with political economy, and play an important part ; 
but it seems to me to be rather the science of pro- 
ducing- National Wealth ; that is to say — public and 
private resources. 

The questions which political economy professes to 
answer, or ought to answer, are such as these : What 
are the best methods of supplying a given society with 
all its material needs ? Under the circumstances, is 
agriculture essential ? If essential, how can it be 



94 MISCELLANEOUS WRITINGS. 

encouraged ? May it be encouraged at the expense of 
manufactures ? Or is it better to leave both to the 
natural laws that govern action ? Will the erection 
of railways be advantageous ? Or may the capital 
expended on them be laid out to better advantage ? 
If the means of intercourse and transportation are 
sufficiently subserved by water in the particular case, 
and if capital expended on railways would be wasted, 
would the employment of such surplus capital in the 
erection of steam engines and machinery be beneficial so 
as to multiply the forces of production ? Or, would it be 
better to invest it in commerce with foreign countries ? 
And, if the same amount of wealth could be created 
by each course, which would be the preferable in the 
long run, as affecting the future well-being of the 
State ? Is the encouragement of the fine arts calcu- 
lated to promote the physical or material prosperity 
of society ? 

In short, we expect political economy to tell us the 
effect of all measures and all pursuits on the general 
supply and distribution of material resources, and 
consequently, upon the national well-being, so far as 
material resources are concerned. 

To produce national valor, military science is to be 
consulted ; national virtue, moral science ; national 
intelligence, educational science ; but the secret of 
national wealth must be sought in the science of 
political economy. The study of all these sciences 
may be necessary to understand the entire necessities 
and well-being of a State ; for intellectual and moral 
development and military power may be as essential 
as wealth and resources to the national prosperity 
a,nd glory, and each of these aspects of social great- 



ESSAYS— LETTERS. 95 

ness may be but necessary complements of the others 
all being required to produce that symmetrical com- 
pleteness which alone can produce true national 
aggrandizement. 

Professor Perry, adopts Frederick Bastiat's defi- 
nition of value as the relation between two services 
exchanged. He also dilates on the excellency of the 
word " service " for explaining the principles of politi. 
cal economy. But I think he uses the word service 
ambiguously, namely, both for the efforts or labor by 
which one performs a service, and for the utility v^hich 
it subserv'cs to him who receives it. Thus, w^e say : A 
rendered service to B, which was of great service to 
him ; i. e., A performed a labor which was of great 
utility to B. These ideas are very distinct the one 
from the other. The same labor may be of great utility 
to-day and no utility to-morrow. Now, the value to 
me is the utility to me. 

Professor Perry defines utility to be the capacity 
v^rhich any thing or any service has to gratify any 
human desire. 



FENIANISM. 



Whilst equal representation and industrial privileges 
are to be sought in every legal way, political separa- 
tion or independency for Ireland is a delusive dream. 
Effort in that direction will only injure the Irish 
cause. For, think : the British Empire is the most 
powerful in existence. It embraces the earth, and 
all its power would be put forth to prevent an 
independent kingdom so near its heart as Ireland. It 



96 MISCELLANEOUS WRITINGS. 

is as if Lombardy (or Cisalpine Gaul) had attempted 
independence in the height of the Roman power. 
When the British Empire goes into disintegration 
(which it will at some future time) Ireland may be 
independent. But that catastrophe is not to be 
expected, not even wished for, now. The centers of 
civilization are not so distributed, nor are its forms 
so perfect as to make it desirable. America, perhaps, 
might be the gainer, for she is now subservient to 
the financial supremacy of England. But the world 
would be an immense looser, and in the general loss, 
even America would participate. Ireland could not 
anticipate much benefit from such a cataclasm. She 
w^ould be deeply involved in it. 

But at all events, whoever seeks to make Ireland 
independent must aim at nothing short of the destruc- 
tion of the British Empire, whatever other conse- 
quences may ensue. That is the necessary objective. 



THE POLITICAL EXPRESSIONS 

OF 

JOSEPH P. BRADLEY, 



COMPILED FROM 



SPEECHES AND ARTICLES WRITTEN BY HIM, 

Published in the Newark Daily Advertiser at 
different periods during 1860-1862. 



MR. BRADLEY'S RECORD. 

As the position and views of J. P. Bradley, Esq., 
on public matters in time past, are a matter of some 
interest at present, we have taken the pains to gather 
from the columns of the Advertiser various reported 
speeches made by him in 1860 and 1861, and articles 
from his pen. 

These pieces indicate very clearly the views which 
Mr. Bradlc}^ is well known by his friends to have 
entertained and freely expressed. That his views on 
the Slaver}^ question and compromise with the South, 
previous to the breaking out of the Rebellion, were 
very conser\'ative, is well understood wherever he is 
personally known. He took a deep interest in the 
efforts to bring about a compromise without the 
effusion of blood, in December, 1860, and January and 
February, 1861. Amongst other things, he drew up 
two articles amendatory of the Constitution, and 
pressed them upon the attention of the famous Com- 
mittee of 33, appointed by Speaker Pennington, under 



98 MISCELLANEOUS WRITINGS. 

a resolution of the House of Representatives. At one 
time the indications were quite favorable for the success 
of these articles in committee— a number of leading 
Republicans having been induced to advocate them, 
and it being well understood that they would have 
been entirely satisfactory to all the Border States. 

The articles referred to, with a brief introduction, 
were published in the Advertiser December 3, 1860, 
the day of the opening of Congress. They are as 
follows : 

COMPROMISE. 

No compromise is good for anything unless founded 
on justice. The fourth article of the Constitution of 
the United States requires and mutuallj^ pledges, that 
fugitives from justice or service, from one State, shall, 
on demand, be delivered up b\^ another where they are 
found. Justice requires that if this be not done, satis- 
faction should be made. Justice also requires that the 
citizens of the South, as well as the North, should 
have a fair opportunity to emigrate, with their prop- 
erty, to the territories which have been purchased with 
the common treasure. But as slave labor and free 
labor do not prosper together, expedienc\^ demands a 
division of those territories between the parties. No 
business man can say that these are not the dictates 
of justice, as between the parties. The following 
terms of compromise are based on these ideas, and we 
suggest them for consideration : • 

[Amendments to the Constitution of the United States, to be 
proposed by Congress to the Legislatures of the several States for 
adoption ; requiring a two-third vote in Congress and a ratification 
by three-fourths of the several States.] 



POLITICAL EXPRESSIONS. 99 

ARTICLE XIII. 

Slavery or involuntary servitude, other than for the punishment 
of crime, shall not be permitted in any of the Territories of the United 
States north of thirty-six degrees and thirty minutes north latitude ; and 
shall not be prohibited in any of the said Territories south of that par- 
allel ; 'provided, however, that any State which may be formed out of any 
portion of said territory, shall have full power in the premises within 
its own bounds, after the lapse of twenty years from its admission into 
the Union, and not before ; and provided, also, that any person 
escaping into any such State or Territory, from whom labor or service 
is lawfully claimed, shall be delivered up on claim of the party to 
whom such service or labor may be due according to the fourth article 
of the Constitution, and any laws passed in pursuance thereof, as 
heretofore. 

ARTICLE XIV. 

If a person held to service or labor in one State, under the laws 
thereof, shall escape into another, shall, in due form, be claimed and 
identified by the party to whom such service or labor may be due, in 
accordance with the fourth article of the Constitution, and any laws 
passed in pursuance thereof ; and by reason of rescue or other forcible 
interference with the due course of law, shall not be delivered up on 
such claim according to the said fourth article, the said claimant shall 
be indemnified, therefore, by the county in which said fugitive shall be 
so claimed, which indemnity may be sued for and recovered in any 
Courts of the United States. 



The next article on the subject from Mr. B.'s pen 
was pubHshed December 15, 1860, and was embodied 
in an editorial in the Advertiser of that date. It was 
as follows : 

" If no better remedy presents itself, let amendments 
to the Constitution be proposed b}' Congress and 
ratified by three-fourths of the States, completely 
indemnifying holders of fugitive slaves, and giving the 
slaveholding States a fair division of the public terri- 
tory. This would obviate the constitutional objections 
to the Missouri compromise. The territories were 
:LofC. 



100 MISCELLANEOUS WRITINGS. 

purchased by the common treasure, and it is just 
that the South as well as the North should enjoy 
the benefit of them. But free labor and slave labor 
cannot prosper together. Therefore it is fitting and 
expedient that these territories should be fairly divided. 
This would designate to each party their proper rights, 
and would prevent any unseemly collisions. Let this 
division be made fairly, and let it be made for all time. 
This is just and w^ise. It cannot fail to meet the 
approbation of the requisite number of States. The 
people of the North are not unfriendly to those of 
the South. The charge to the contrary is a slander. 
Nois}^ and blustering persons, both at the North and 
at the South, utter many foolish and crazy speeches ; 
but the mass of the people have no sympathy with 
them. This we know to be so at the North, and we 
hope it is so at the South. We are sure it would be so 
if the people in that section clearly understood the 
true feeling of the North towards them. 

" In such an exigency as the present no party feel- 
ing should be permitted to intermingle. But are there 
any reasons wdiy the Republican part}^ should not 
co-operate in such a settlement of the controversy as 
that which is indicated ? 

" The Republican party (unjustly, we know) is 
deemed a sectional one ; and is held responsible for 
arousing a strong sectional feeling — a feeling of 
animosity to institutions on one hand, and jealous}-- 
on the other. A disruption of the Union will be 
unjustly laid to it. But it will, nevertheless, be laid to 
it. It is, therefore, as much the interest of the Repub- 
lican as of any other party to co-operate in such 
measures as may lead to an honorable and just settle- 
ment of existing difficulties. 



POLITICAL EXPRESSIONS. 101 

" But rightly viewed the heahng measures proposed 
are in strict conformity with the views and principles 
of that party. This will appear by attention to the 
following propositions : 

" The Compromise of 1850 resulted in the admis- 
sion of California as a free State, though situated in 
part south of the Missouri Compromise line ; and in 
the enactment of the Fugitive Slave law, leaving the 
Missouri Compromise line in all other respects undis- 
turbed. It was supposed that this settlement would 
be satisfactory to the country, and forever quiet 
agitation. 

" But the rapid settlement of Kansas, and its 
immediate proximity to the slave property of Missouri, 
opened a door for renewed and angry controversy. 
The South sought to occupy that Territory, as an 
off-set to California. To effect this object, the Kansas 
and Nebraska act was promoted by Mr. Douglas and 
passed by Congress in 1854, by which the Missouri 
Compromise was repealed. The decision in the Dred 
Scott case was used for the furtherance of the same 
purpose. 

" At these manifestations of the rapid strides made 
by the slave power, the North rose in the shape and 
form of the Republican party. Its special mission was 
to drive back the tide of slavery within its proper 
limits — not by waging war on the South or by ignor- 
ing the obligations of the Constitution — but by rescuing 
the territories of the Union from the unjust grab of 
the slave power. 

" If, now, the Republican party vigorously sup- 
port a Constitutional provision by v^rhich the nation 
is brought back to the Missouri Compromise, can it be 



102 MISCELLANEOUS WRITINGS. 

justly accused of being false to the principle of its 
organization ? On the contrary, no course could be 
more compatible with it. No act could more fully 
consummate the mission of the Republican party. 

" This object attained, that party has still enough 
on its hands to do. To it naturally falls the cham- 
pionship of the industrial interests of the country. In 
the pursuit of this object, which is purely a national 
one, the party will receive the co-operation of the con- 
servative party of the South, and the two will form 
one great national party of impregnable strength. 

"As to the other point, the indemnity of owners 
of fugitive slaves rescued or v^ithheld, it is a matter 
of simple justice. Each State rests under a clear con- 
stitutional obligation to restore fugitive slaves when 
demanded. If they fail to do so, it is clear that the 
owner should be indemnified, and the delinquent parties 
made to bear the loss. 

" Thus on party, no less than on patriotic grounds, 
every consideration of right and expediency leads us to 
the same conclusion. We assure our Representatives 
and the country that they will have the voice of New 
Jersey in favor of every honorable effort w^hich can be 
devised for preserving the national existence." 



[Published December 2S, 1860.] 

PARTY OR COUNTRY? 

St. Paul knew that meat which had been conse- 
crated to idols "v\'as just as harmless as that which 
had never undergone such an absurd formula. But 
many uninformed Christians had not that degree of 



POLITICAL EXPRESSIONS. 103 

knowledge ; and if they saw him eat it, they would 
either be scandalized, or else infer that a religious 
respect for the idol was not inconsistent with the 
Christian faith. "Wherefore," said the Apostle, "if 
meat make my brother to offend, I will eat no meat 
while the world standeth." This is a noble instance 
of that charity which our divine religion inculcates. 

The Republican party has succeeded in electing its 
candidate for the Presidency. It says that it means 
nothing but fealty to the Constitution, and intends no 
invasion of the rights of the South. This is well. But 
the South believes otherwise. The South may be 
uninformed, or wrongly informed, on the subject. 
But, nevertheless, it is a fact that a great deal o 
exasperation exists ; and exasperation has led to acts 
and declarations which are leadmg to the disruption 
of the Republic. 

In all this the South may be very wrong — undoubt- 
edly is very wrong. The South, especially South 
Carolina, has acted very unjustifiably, not to say 
treasonably. There is no justification for secession — 
which is simply rebellion. And if the South was going 
to injure itself alone, it might, perhaps, be a just retri- 
bution to let it separate from the North. But it will 
not injure itself alone. In breaking the ties that con- 
nect us together, the South would bring ruin on the 
common country. The fatal act would bring disgrace 
on free institutions ; it would prove v.diat the advocates 
of despotism are anxious to prove, the incapacity of 
mankind for self-2fovernment ; it v^^ould destrov the 
prestige of this nation, and all the associations dear 
to freedom, which are connected with it ; and, in this 
way, independent of any consequences to our material 



104 MISCELLANEOUS WMTINGS. 

interests, it would involve ruinous consequences to the 
whole American communit}^ and to the cause of civil 
liberty throughout the world. 

Of this there can be no doubt. Vain is the hope 
of re-establishing a portion of the shattered fragments 
of a divided country into a new government of the 
North, to be based on firmer foundations and cemented 
together with a more fervent loj^alty than the present 
government has enjoyed. Those who hold out this 
hope are deceiving us. They are either self-deceived or 
they are inflamed with personal ambition — animated 
by that bad spirit which had rather rule in hell than 
serve in heaven. 

The choice is before us, disunion, vvath probable 
civil war ; or concession and peace. But will conces- 
sion bring peace ? and can peace be secured by honor- 
ble concession ? Of this, not the slightest doubt exists. 
All the South asks is a guaranty that the victorious 
North will not trample on their rights. Give them, in 
the first place, substantial security that their fugitive 
slaves shall, if demanded, be returned ; or that they 
shall receive the value of them if rescued out of their 
hands. This is a just demand. They have a right to 
ask it. They do not now practically receive the benefit 
of that article of the Constitution which requires their 
fugitive slaves to be delivered up. In attempting to 
secure the benefit of it they have to run the risk of 
being mobbed, or of being delayed by expensive suits 
instituted under personal liberty laws, habeas corpuses, 
and other machinerj^ of that kind. Let us do them 
justice in this respect. Let us fairly comply with our 
constitutional duties, and treat the South like brethren, 
not like enemies. It is all the}- ask us to do. That is, 
that it is all that the great majority ask us to do. 



POLITICAL EXPRESSIONS. 105 

In the next place, they ask us to secure to them a 
fair proportion of the pubHc domain, to which they 
may emigrate with the same freedom from molestation 
which we enjoy in emigrating to the Northwestern 
lands. This is also just. The public lands are the prop- 
erty of the whole nation. It is not fair in us to grasp 
them all. They would be satisfied with the line of 
thirty-six degrees and thirty minutes as a line of 
division. New Mexico and Arizona are the only Terri- 
tories south of that line. It was the line with which 
the nation was satisfied for a generation. Why not 
re-adopt it ? 

But that would be against the principles of our 
party ! Is fealty to party to stand before fealty to 
the country ? Is a divided country, torn by civil dis- 
sensions, to be preferred (for it certainly will come) to 
a generous concession of some rigid party dogma ? 
Then I am no party man. Then I repudiate party. 

But it is not so. The Republican party can 
re-establish the Missouri line with perfect honor — and 
without the sacrifice of a principle. They would 
thereby secure to free labor three-fourths of the public 
territor}^ all of which, by the highest judicial authority 
of the nation, is now declared to be open to slavery 
equally as to free emigration. 

Shall we say that the Court decided wrong ? That 
may be. All Courts are liable to error. But peaceful 
and judicial decision, under a government of law, is 
far better than an appeal to arms. At all events, such 
is the decision ; and the constitutional mode of correct- 
ing it is not by disregarding it, but by amending the 
Constitution upon which the decision was made. 

Fellow Republicans ! the issue is in our hands. 
Some of our number desire a disruption of the Union 



106 MISCELLANEOUS WRITINGS. 

for the very pur[30se of erecting a Northern RepubHc. 
Shall we be led by them into the yawning gulf which 
lies at our feet ? They will counsel us against all 
concession. I regard them but little better than the 
rebels of the South. Our ambitious politicians are 
bent on ruining us. Let the people rise in their might 
and speak a voice for Union and the country that will 
make politicians listen and tremble. 

They say, " Who's afraid ? I will tell you. Fools 
and madmen are not afraid. But those who foresee 
the evils that are to come — they are afraid. They fear 
for their country, and for the fate of civil liberty in 
the world. 



[Published February 20, 1861.] 
BACKBONE. 

Some papers and speakers a.re constantly talking 
of backbone. ' * Don't back do\vn from your principles, ' ' 
is their motto. It is well to understand what this 
means. 

There are three distinct parties at the North : First — 
Democratic politicians, v^dio seek every opportunity^ to 
turn the j;^ublic crisis to their particular party advan- 
tage, by representing that the Republican party is an 
association of enemies to the Constitution and country. 
Their constant effort is to place the Republicans in 
the wrong. They profess to be friends of Southern 
rights, and eagerly put forward such plans of com- 
promise and conciliation as the}" /vijoiv will be distaste- 
ful and revolting to the Republican feeling. The}- do 
this in order to drive the Republicans to the position 
of enemies to all compromise. 



POLITICAI. EXPRESSIONS. 107 

Stcond— Republican politicians, some of whom 
appear to think more of a Chicago platform than they 
do of the Bible— or, at least, profess to do so. They care 
fifty times as much for their party and its programme 
as they do for the countr^^ When urged to concur in a 
compromise with the Border Slave States, one of this 
class said, "No compromise. If they choose to go, 
let them go. We can get along without them. We 
can form a confederacy with Canada and establish a 
great Northern Republic." Publicly, of course, they 
profess great attachment to the Constitution ; and 
assume to be its friends par excellence, while they 
refuse to lift a finger to save it, except in the imprac- 
ticable wa}^ of coercion and civil war. Just at this time 
they are the advocates of warlike preparation, strength- 
ening the hands of government, and all that ; and they 
decry every one \vho speaks of concession and arrange- 
ment as a traitor. They call him weak-kneed and 
dough-faced. They step before the real lovers of the 
Constitution and the Union, push them one side, and 
cry out, " We are the true patriots ; we are the true 
lovers of the Constitution." 

Third — The other party are the moderate and consid- 
erate men of all parties wdio love the Constitution and 
the Union more than they love party ; who cling to 
them as the palladia of all they hold sacred and dear. 
To save them from destruction they are willing to 
concede every just right to the slave States. The\' are 
anxious to make some arrangement which wall confirm 
the Union sentiment in the border slave States. They 
are just as strong in favor of supporting the govern- 
ment, and giving it power and efficiency, as the sternest 
Republicans ; but they are, at the same time, equally 



108 MISCELLANEOUS WRITINGS. 

as anxious that all occasion for testing the strength 
of government may be obviated by paternal and 
peaceful arrangement. They are anxious for this, 
because they believe it to be the only practicable method 
of preserving the national existence. They are the 
people whom the politicians call weak in the knees, 
destitute of backbone, and such like liberal epithets. 

Is NOT THIS EXACTLY TRUE ? Now, which of thcSC 

parties are we to choose ? Are we to stand by and 
see the country go to pieces, and not lift a hand to 
prevent it ? The border slave States will certainly 
join the Southern Confederacy unless something be 
done to confirm the Union sentiment, which, at the 
present moment is in the ascendant there. But though 
now in the ascendant, the doctrines of secession are con- 
stantly i^reached by a thousand interested missionaries 
from the Gulf States, and will assuredly prevail, 
unless we enter into some arrangement which shall 
demonstrate our willingness to yield the South a 
fair participation of the public territory. It is not 
enough for us to say that we intend no invasion of 
the rights of the South. They think otherwise. They 
interpret the Republican platform otherwise. True, 
the most moderate men of the South might and would 
be satisfied with things as they are ; but the masses 
Tvill not be, and the question is simj)ly this : Shall we 
divide the territory, or shall we divide the country? 
Another proposition is equally clear : If the border 
slave States do join the Southern Confederacy, coercion 
is out of the question. We are then a broken and 
divided empire. Our glory and our greatness are 
extinct. 

It is also clear that nothing is necessary to be done 
which the North cannot honorably agree to. What 



POLITICAL EXPRESSIONS. 109 

concession of principle is involved in adopting the line 
of thirty-six degrees and thirty minutes as a perpetual 
line betw^een slave labor and free ? The Chicago plat- 
form ? Does that platform mean to declare that the 
Southern States are entitled to none of the territories ? 
If it does, it declares a solecism. Whatever its terms 
may be, its spirit is only defensive — not aggressive. 

Slavery was marching northward, striding over 
Kansas and the West. The Supreme Court declared 
it lawful everyw^here in the public territories. The 
Republican party raised its protest against this 
advance of the slave power. This is simply its position. 
Its language may be strong ; but the spirit and mean- 
ing of it was simply this — *' thus far shalt thou go, 
and no farther." Now an agreement or compromise, 
which ends the strife, and drives the stake, and lays 
the line of demarcation forever, is not concession of 
principle, nor a compromise of honor, but a fair 
adjustment of conflicting claims. 

Then which of the parties are we to choose, the 
politicians or the peacemakers ? As for me and my 
house, our faces are set for conciliation and com- 
promise. 



Speech at Newark on the celebration of Washing- 
ton's Birthday, the evening of February 22, 1861. 

Joseph P. Bradley Esq., was then announced, and 
spoke substantially as follows : 

Friends and Fellow-Citizens : — I understand this 
meeting was intended to be free from a partisan char- 
acter. As such it was represented to me, and as such 
I complied with the request to offer some remarks in 



110 MISCELLANEOUS WRITINGS. 

your presence. This is no time for the indulgence of 
party feeHngs, or the promotion of party objects. A 
common danger, which threatens our country, renders 
it necessary that those should be discarded— a danger 
such as has not been faced since the times of the 
Revolution, and those w^hich immediately followed it. 

I know it is very hard to rise above the influences 
of party prejudice. Often it almost drowns the senti- 
ment of patriotism. Party rancor and party hatred 
are the last serpents which the genius of patriotism 
can crush. But in all great emergencies like that in 
which we now are, crushed they must be, or else we 
shall drift on to certain and irretrievable ruin. [Pro- 
longed applause.] 

The celebration of this day is a fitting occasion to 
call these sentiments to mind. No man ever lived 
w^ho rose so far above the paltry prejudices of the hour 
and of the partisan as George Washington. His 
motto was his country only. We have just heard the 
preceding speaker read the solemn words of warning 
which he addressed to his countrymen when retiring 
from public life. They sound almost like a dirge on 
the ear — or like the burden of some ancient prophet — 
foreshadowing the dark days of evil for time which are 
to afflict a guilty and infatuated people. 

In turning back to those passages in his history 
which seem most fitting for our present contemplation, 
none have struck me more forcibly than those which 
preceded the adoption of the Constitution. The Revo- 
lution had triumphed — victorj^ was won — peace was 
smiling over the land — and everything betokened the 
inauguration of a prosperous age ; but the demon of 
anarchy was stalking abroad. "WTien there was no 



POLITICAL EXPRESSIONS. Ill 

public enemy without, then the furies of internal 
dissension seemed to be let loose. There was a confed- 
eration of States ; but it was not a united government, 
every State did what was right in its own eyes, 
furnished the supply which Congress demanded when 
thc}^ chose, and refused them when they chose. 

Individuals imitated the examples of the States, 
and armed themselves in hostilit}- to their own Govern- 
ment. In Massachusetts a very formidable armed 
insurrection arose in the western counties. The Courts 
were forcibly closed and not allowed to assemble, and 
general gloom prevailed. The Government was crum- 
bling into atoms, dissensions and chaos were the order 
of the day. 

This was in 1786. Washington was fifty-four 
years of age. It is interesting to us to know hov^ he 
thought, and how he acted, at such a time as this. 
It seemed as though all for which he and his com23eers 
had toiled through the dark and drear^^ days of the 
Revolution was in peril of imminent and inglorious 
destruction. It seems so now. How Washington felt, 
and how he acted then, present a lesson well worthy 
of the deepest reflection. 

I have before me several of his letters written dur- 
ing this period, and whilst the Constitution was under 
discussion, which shows to us my beau ideal of a true 
patriot — that is, a patriot above tlie spirit of party. 

[Mr. Bradley here read extracts from letters w^ritten 
by Washington to Ja}-, Madison and Lafayette.] 

These are the sentiments on v\,'hich our national 
existence rested for seventy-five years, and with which 
every American citizen should at this moment be 
actuated. The anxieties, the impulses, the heart- 



112 MISCELLANEOUS WRITINGS. 

throbbing yearnings for the good of the whole 
country, and the union of the whole country, on 
principles of justice and mutual sacrifice, are needed 
now no less than they were needed then. These 
were the feelings that glowed in the bosom of the 
Father of his Country, and if he were alive they 
would glow in his bosom now. [Applause.] 

The union of the country, and the Constitution 
which was found to preserve and support it, and a spirit 
of mutual concession and sacrifice both emanating 
from and sanctified by the spirit of lofty patriotism, 
untainted by party feeling, party animosity or party 
prides — these are the objects for which he labored ; 
this is the spirit by which he was animated — and he 
preaches them to us this day, in a voice of touching 
entreaty, coming down from the echoes of the past, in 
tones so eloquent that none but traitors can refuse to 
hear. [Tumultuous applause.] Ah ! ye that spurn 
the institutions which he helped to frame, and over 
the inauguration of which he presided, and strive to 
tear asunder with unhallowed hands the glorious 
flag which he unfurled — ye that spurn the holy love of 
country, those patriotic feelings of mutual forbearance, 
concession and sacrifice, w^hich animated him and his 
compeers, and which he endeavored to impress upon 
the hearts of his countrj^men — ye that cling to local 
and party prejudices in a time of general danger and 
prevailing treason, and forget that you have a common 
interest in the welfare of the whole country, and of every 
part of it — I charge j^ou never to invoke the great name 
of Washington as a patron of A^our principles or your 
deeds. Could his pure and majestic spirit look down 



POLITICAL EXPRESSIONS. 113 

Upon you from the place of his serene abode, his grave 
and indignant form would chill your miserable hearts 
to stone. [Great applause.] 

But, my friends, let us look for better things to 
come, and that we may yet see the glorious institu- 
tions that have promoted the interests of freedom 
throughout the world, shall be preserved by mutual 
conciliation and sacrifice. 

Mr. Bradley resumed his seat amid loud applause. 



It thus appears that as long as there remained the 
slightest hope of reconciliation and compromise with 
the South, Mr. Bradley was among the most earnest 
in favor of it, and was ready to make any honorable 
concession to accomplish it. But the moment the 
flame of rebellion burst out into open violence, his 
whole tone was changed. In his view, it then became 
simply a question of country or no country ; a ques- 
tion whether we would stand by our free institutions 
till the last drop of blood was shed, or whether we 
should tameW submit to have them destroyed by 
wicked hands before our eyes. And as in a foreign 
war it is our duty as well as a point of honor to 
stand by our own Government even though some of 
its measures may not be approved ; so, in this war, 
it is our duty to stand by our Government in its efforts 
to put down treason and rebellion. These views will 
be found expressed in the following articles. The first 
appeared as a communication in the Advertiser on the 
15th of April, 1861, a few days after the attack on 
Fort Sumter and the troubles at Baltimore : 



114 MISCELLANEOUS WRITINGS. 

THE CRISIS AND ITS DUTIES. 

[Published April 15, 1S61.] 

There can be no question or vacillation now. 
Every citizen is bound to sustain his Government. 
When questions of policy were discussing w^e might 
clifFer. We may privately differ from Government as to 
its policy nov^. But Government has declared its polic}^ 
lias taken the responsibility of action, and now, we 
xiiust either stand by our country, or be prepared to 
fall in its ruins. 

We had hoped this painful crisis might have been 
avoided. We believe it could have been avoided. We 
labored hard to effect that result. But it was not 
effected, and civil war is upon us, and it is no time 
no\Y to indulge in useless regrets. The proper parties 
mn]l be held responsible at a proper time. 

It is now no longer a party question. It is not a 
Republican question, nor a Democratic one. It is 
a question of government, and law, and country. 
When our country, as represented by the constituted 
authorities of government, calls to duty, either in a 
contest of self-preservation or against a foreign foe, it 
is no time to inquire who are in power, or by what 
f.arty the Government is administered. To do so, 
might show a loyalty to party organization, but it 
would be practical treason. We need not yield our 
opinions ; vi'e need not cease to urge our views in our 
domestic councils ; nor to influence, so far as we may, 
the views of our own public agents and rulers, but to 
those with whom our country is at issue, we must 
:^liow a united front. We must reserve to ourselves 
the sole right of abusing our rulers. But since they 



POLITICAL EXPRESSIONS. 115 

are our agents, and the representatives of our sover- 
eignty, others must respect them. We may scold, but 
we must obey. We may grumble, but we must fight ; 
fight under and fight for our flag, no matter by whom 
the staff is upheld. 

But in the light of the Constitution and the Laws, 
our government is riglit. Secession has always been 
treason. Those who are familiar with its history 
know that the people of this country adopted the 
Constitution for the very purpose of putting an end 
to nullification and secession. Its very preamble 
declares its object to be to form a more perfect Union, 
and to insure domestic trancjuillitj^ It expressly 
declares that no State shall enter into any treaty, 
alliance or confederation, nor, without the consent of 
Congress, keep troops or ships of war in time of peace, 
nor enter into any agreement or compact v^nth another 
State, or with a foreign power, or engage in war 
unless actually invaded ; and, for the settlement of 
differences that may arise, the judicial power of the 
Government is extended to controversies between two 
or more States ; and the Constitution and the United 
States are declared to be the supreme law of the land. 

The moment South Carolina interfered with the 
execution of the Federal lav^^s, the moment she laid the 
weight of her finger on a foot or a pound of Government 
property, with intent to occupy and keep the same by 
public force, that moment treason vvras committed ; 
and as, by the same Constitution, the President is to 
" take care that the laws be faithfull}' executed," that 
moment it v^as his constitutional duty to employ 
the executive force of the country to execute the laws. 
The constitutionality of the course now taken by 
Government cannot be called in question. 



116 MISCELLANEOUS WRITINGS. 

We never urged compromise on the ground that 
secession was constitutional, or that it was to be 
view^ed with a moment's patience ; but only on the 
ground of expedienc^^ — as the best way of restoring 
harmony and peace to the country. We still believe 
that it would have been wisest and best. Our own 
view always was, conciliation first — nay, conciliation 
to the extreme point of liberality — and then, if nothing 
would avail for the attainment of peace and submis- 
sion to the common Government of the countrj'^, thetiy 
and not till then, let force decide w^hether v^^e have a 
countr}^ or not. But that is also past. 

Now the Government has put forth the arm of 
its power to execute the Jaws, and let them he obeyed. 
Let there be no traitors ; no double-minded among us. 
Let there not even be any vacillating. If any treason 
is found to exist among us, let it be crushed in the 
bud. Let us do all that in us lies to support the dignity 
and glory of the country which gave us birth. Let 
not New Jersey be backward. She has never been 
backward in duty before ; let her be true to her 
old traditions now. We hope the Executive of this 
State will take all such measures as are in its power 
to be ready at a moment's warning to aid the com- 
mon force, and to preser\^e the domestic tranquillity 
of the State. 

But how far, it may be asked, are we to support 
the acts of Government ? So far, most assuredly, we 
answer, as Government shall see fit to go within the 
line of its constitutional power ; and that clearly 
extends to the possession and occupation of all the 
Government forts and arsenals and post ofiices, and 
other public property, and the execution of the federal 



POLITICAL EXPRESSIONS. 117 

laws in all the States. Whether Government will 
consider it expedient to go so far as that is for it to 
determine. The Congress has been called, and if the 
national will, expressed in a legitimate manner, shall 
deem it advisable, on just terms, to allow a portion 
of the United States to separate itself from the mother 
country, and erect an independent government, it will 
then be time enough to call in question the attempt 
of the Executive to maintain the national authority 
in the whole country. Meanwhile it will be our right 
and our duty to contribute our mite toward influenc- 
ing that national will in such direction as each of us, 
having the good of his country'- sincerely at heart, 
ma}^ deem most for the public welfare. 



On the 22d of April, 1861, a mass meeting was 
held at Newark to take into consideration the public 
crisis and to devise measures for aiding the Govern- 
ment in the suppression of the rebellion. Mr. Bradley 
was requested to draw the resolutions for this meeting, 
which he did, and enforced them by a speech, v^^hich 
was not reported. The resolutions are as follows : 

RESOLUTIONS. 

Whereas, the subversion of our country's Constitution and 
Government is threatened by armed bands of traitors in several States 
of this Union, and the Federal authorities have found it necessary to 
call into action the military force of the country for the maintenance of 
the laws ; and Whereas, the preservation of our national existence 
requires the co-operation of every loyal American citizen at this crisis 
of our history, therefore, 

Resolved, That it is the firm, unanimous, unalterable determination 
of the citizens of Newark, first of all, and above all other duties, laying 



118 MISCELLANEOUS WRITINGS. 

aside all party distinctions and associations, to sustain the Government 
under which they live, which was adopted by the people's own choice, 
and which has never brought anything but blessings in its train, and 
to this object they pledge their lives and property. 

Resolved, That we, the said citizens of Newark, will give our 
united, strong and unwavering support to the President of the United 
States and the General Government in its endeavor to enforce the 
laws, preserve the common property, vindicate the dignity of the Gov- 
ernment, and crush the treasonable conspiracies and insurrections 
which are rampant in various parts of the land, leaving to them, as 
the constituted authorities, the exercise of their rightful discretion, 
within all Constitutional limits, as to the mode and manner in which it 
is to be done ; at the same time sincerely deploring the necessity which 
compels us to array ourselves in opposition to men of the same blood, 
and who possess, in common with us, the traditions of the Revolution, 
solemnly declaring that nothing but the highest and most sacred sense 
of duty to our country and our God could lead us to risk the shedding 
of our brothers' blood. 

Resolved, That we utterly execrate and abhor the ringleaders in 
this treason and rebellion, as enemies of all good ; as false to their 
country, their oaths, and their honor; and that they have forfeited all 
claim to our fraternal sympathies and regards ; but we sincerely com- 
miserate and sympathize with our fellow-citizens in those States where 
rebellion is predominant, who still maintain their loyalty to the Consti- 
tution and country, but who are unable, in the insane and treasonable 
commotions which surround them, to make their voices heard. 

Resolved, That by the Constitution we are one nation, indissol- 
uble by the action of any State or section ; that the Constitution and 
the laws provide the means of redress for every wrong, actual, fancied 
or apprehensible ; and that, when peace and obedience to law are 
restored, we shall be ready to co-operate with our fellow-citizens 
everywhere, in Congress or convention, for the relief of all supposed 
grievances, yielding ourselves, and expecting others to yield, to the 
will of the whole people lawfully expressed. 

Resolved, That the Common Council be respectfully requested to 
make such appropriations as may be necessary for the support of the 
families of those of our citizens who shall enter into military service 
under the call of the constituted authorities, and we pledge them the 
unanimous support of the people in so doing. 

Resolved, That a committee of twenty-five citizens be appointed 
by the chairman to take in charge and carry forward all measures 



POLITICAL EXPRESSIONS. 119 

needful for the equipment of troops, and to co-operate with the Com- 
mon Council in the objects of the last resolution, and to take SL;ch 
measures in co-operating with the authorities for the general security 
and protection as may be deemed advisable. 

The only other document we shall reproduce corn- 
prises the resolutions adopted by the great Union 
meeting at Newark, which was addressed by Hon. 
Daniel S. Dickinson, September 20, 1861, together 
with the speech by which Mr. Bradley introduced 
them. These resolutions were also from Mr. Bradley's 
pen, and express the position which he has always 
assumed since the Rebellion broke out : 

MR. Bradley's speech. 

Joseph P. Bradley, Esq., was then introduced by 
the chairman, and was most w^armly received. He 
said : 

Friends and Fellow-Citizens : — It is made my 
duty by the arrangements \vhich have been made by 
those who have called this meeting together, to present 
for its consideration resolutions expressive of their 
views in respect to the great and important 
events which are hovering over our country. [Cheers.] 
Before reading these resolutions, I will take the liberty 
to express in a few and plain words the general purport 
and essence of the resolutions that will be offered. In 
the first place, we believe that this Union and this Gov- 
ernment of ours, under which we live, under which wc 
have so long been happy and prosperous, under \vhich 
more freedom, more liberty and more enjoyment is 
experienced than under any other government that 
has ever existed on the face of the globe, is and inust, 
and shall be maintained [cheers], and that it ought to 
be so ; that it was meant to be so, and that to maintain 



120 MISCELLANEOUS WRITINGS. 

the contrary was treason to the principles upon which 
the Government and our institutions are founded. 
[Enthusiastic cheers.] In the next place, we believe, 
and we hold it to be true, that the Constitution under 
which we live, was adopted by the people of this 
country for the purpose of preserving and defending 
that Union and Government, and that those v^-ho 
attempt to subvert it, and to rend this fair countr}-- 
into divided fragments are traitors to the principles 
of the institutions that adorn the American world. 
[Cheers. A voice : *' That's so."] 

In the third place, we believe, and hold it 
to be true, that at such a time as this, when 
treason and rebellion are stalking about in the land, 
and are not absent even from ourselves, we should 
forget all party differences and bury them under our 
feet, and come up Democrats, RepubHcans, Americans 
or whatever other party there may be, shoulder to 
shoulder, as we stand here to-day, in support of the 
Constitution and Government, until its authority is 
vindicated forever. [Loud cheers.] In the fourth 
place, that we will, because we must, trust the man- 
agement of the controversy to the constituted 
authorities, whoever they may be, forgetting for the 
moment all other political objects. We shall stand 
by them, not because they are of this political shade 
or of that, but, because in the providence of God they 
happen to be at the head of our affairs, and if we do 
not support them we cannot support our leaders. 
[Cheers.] 

In the fifth place, we believe that we ought to 
unite and organize ourselves together as a Country 
party [cheers], as a Union party [cheers], and as a 



POLITICAL EXPRESSIONS, 121 

party determined to see the Government through 
[cheers] ; that we will stand by the Constitution 
which is the Constitution of thirty-three States, and not 
of seventeen States, and that we will do this without 
any fear of danger or hope of reward. [Cheers.] 
That we v^rill do it because it is our duty to do it ; 
because our prosperity depends upon it ; and that we 
will do it because we have sworn allegiance to this 
Constitution and this Government. After alluding to 
the peace party, and remarking that we should have 
submission to the Constitution first and compromise 
afterward [cheers], Mr. Bradley read the resolutions, 
as follows : 

RESOLUTIONS. 

1. Resolved, That "the Union must and shall be preserved ;" that 
its preservation is demanded by the history of the past and the hopes 
of the future ; by the wisdom of its founders and the national happi- 
ness and prosperity which it has caused ; by a regard to the sanctity 
of law, and the success of free institutions ; as an example to the 
world, and a guaranty to future ages, of the ultimate triumph of right, 
liberty and equality. 

2. Resolved, That the Constitution of the United States is the 
palladium of the Union, and was adopted by our fathers for the express 
purpose of rendering it perpetual ; that to it, as the supreme law of 
the land, we owe our first and highest allegiance, paramount to all 
other allegiance ; and that none but traitors and parricides will 
attempt to subvert it or to desecrate the flag which waves over us as 
its expressive symbol. 

3. Resolved, That in the present contest for the existence of the 
Union, we should recognize no partv, believing it to be the solemn 
duty of every patriot to lay aside party names and party prejudices, 
and rally to the support of the Government until rebellion shall be 
crushed and treason annihilated ; and that the nomination of candi- 
dates for any office on party grounds tends to excite a strife which 
cannot fail to be productive of evil in the present unhappy condition 
of the country. 



122 MISCELLANEOUS WRITINGS. 

4. Resolved, That when our Government shall be rescued from 
danger of annihilation, and we can once more say we have country 
and a name to be proud of ; when it shall again be a boast and a shield 
of safety all over the world to say, " I am an American citizen ;" — it 
will then be time enough to remember our party names, and to discuss 
party issues ; but till then to do so will be to fight against our brethren, 
whilst the enemy is destroying our common heritage. 

5. Resolved, That as long as two hundred thousand rebels are 
thundering at the gates of the Capital, none but those who are cravens 
or false-hearted will cry " peace, peace ; " and none but traitors will 
seek to restrain our strong-handed yeomanry from rushing to the 
defence of our common country and Government. 

6. Resolved, That in the exercise of the war power, and in the 
midst of actual hostilities, it is no time to trifle with or wink at treason, 
either active or covert ; and if any persons are found within our lines 
whose loyalty is reasonably suspected, the only safe course is to deprive 
them of the power to do mischief; and that in arresting and securing 
those who aid and abet the cause of our enemies and suppressing 
seditious and treasonable publications, the Government exercises only 
the ordinary right of self-preservation, and the power which is implied 
in the right to resist and suppress an internal war. 

7. Resolved, That all Union-loving men who feel that party 
should be ignored and that our Government should be sustained and 
upheld in its endeavors to put down rebellion and enforce obedience 
to the Constitution and laws throughout the whole country, and who 
are willing to act on these views, should organize themselves for pro- 
moting and carrying out such a sacred object and for thwarting and 
overruling the insidious acts of those who profess a desire for honor- 
able peace, but are ready for a dishonorable surrender of the integrity 
of their country. 

8. Resolved, That a committee, to consist of seven members, be 
appointed by this meeting, to inaugurate such an organization for this 
county, and to correspond with similar committees from other counties, 
in order to perfect such an organization throughout the State, so as to 
give to the loyal people of New Jersey an opportunity of making their 
voice heard, and their influence felt, in the pending struggle for a 
national victory. 

The resolutions were adopted by acclamation. 



POLITICAL EXPRESSIONS. 123 

It thus appears that Mr. Bradley has always been 
eminently conservative in his views on national ques- 
tions. It also appears that on the subject of the 
Rebellion he has never entertained but a single view — 
that it must be put down at all hazards, and that no 
more compromises can be entertained till the authority 
of the Government over the whole country is restored. 
This is the sum and substance of the whole record ; 
and shows that Mr. Bradley stands where every true 
patriot stands — on the Constitution as it is, and the 
Union as it was. 



SPEECH 

OF 

JOSEPH P. BRADLEY, ESQ., 

AT THE 

UNION ADMINISTRATION MEETING, 

HELD IN NEWARK, OCTOBER 22, 1862. 



[From the Newark Daily Advertiser, October 23, 1862.] 
THE ADMINISTRATION MEETING. 

SPEECHES BY MESSRS. BRADLEY AND OTHERS. 

The mass meeting of friends of the Administration^ 
held at Concert Hall last Wednesday, was another 
impressive demonstration of popular sentiment, the 
spacious hall being filled to overflowing at an early 
hour ; and the remarks of the speakers were listened 
to with deep interest. The main feature of the evening 
was, of course, the speech of Joseph P. Bradley, Esq., 
their candidate for Congress in this district, it being 
the first public expression of his sentiments since his 
nomination. Though fresh from the court room, 
overwhelmed by professional cares, and somewhat 
embarrassed by a cold, Mr. Bradley warmed up with 
the interest of his subject, and it is not too much to 
say that he more than realized the most favorable 
anticipations of his friends. His speech, to a full 
report of which we yield a large portion of our space, 
■which could not be better filled, was the fresh and 
vigorous utterance of one whose thoughts are not 



126 MISCELLANEOUS WRITINGS. 

accustomed to travel in the settled groove of partisan 
machinery, or among the cunning platitudes of the 
mere politician — but the enlarged views of a thought- 
ful and intelligent man, who has been drawn into the 
political arena solely through a sense of duty to the 
countiy ; and he doubtless did not exaggerate the 
truth when he said that, on personal accounts — and 
all others, save the great principles at stake — he should 
greatly prefer the election of the opposing candidate 
to his own. But without enlarging upon the details, 
we give place to our report : 

MR. Bradley's speech. 

The chairman then introduced Joseph P. Bradley, 
Esq., who spoke as follows : 

Mr. Chairman and Fellow-Citizens : — I do not 
know that I am well enough to-night to say more 
than a few words. I am oppressed by a severe cold 
in my throat and chest ; but I have nevertheless felt 
it my duty, as I have been expected here, to make my 
appearance and to declare myself upon some of the 
issues presented in the present canvass. 

I appear before you in a position in which I never 
expected to be placed. Political distinction was 
never an object of my ambition, especially political 
distinction of the sort for which I am now a candidate 
before my fellow-citizens of this district ; and I could 
not have been persuaded to engage in this contest but 
from a sense of duty. I look upon this election as the 
most important one that has ever been held within 
my recollection. I believe that it is the most important 
election that has ever been held within the memorv of 



POLITICAL EXPRESSIONS. 127 

any man in this house. I believe that the general 
results of the election in the Northern States wall go 
far towards settling and determining the destiny of 
this great republic ; and I believe this because I believe 
that if the Democratic party shall be successful in the 
election of its candidates in the Northern States, or in 
the election of a majority of them, so as to control 
the next Congress of the United States, the republic is 
ended. This may be a hard saying. I would not say 
it without due deliberation ; and v^hen I do say it, I 
do not mean to be understood as saying that there 
are not in the ranks of the Democratic party many 
thousands of excellent and patriotic men ; but I do 
mean to say that the secret councils of that party at 
this time are controlled by men — deep men — who have 
not the interest of their country at heart. I believe 
that those men are deceiving the people who follow 
them — for the people are honest — the masses are hon- 
est — but they may be temporaril}^ deceived by false 
pretenses ; and such I believe to be the fact under the 
present organization and operations of the Democratic 
party. 

We cannot shut our eyes to the fact there are now 
two classes of Democrats ; and I may as well use here 
on the platform the -words we use on the street, and 
sa}' that those two classes are the Secession Democrats 
and the War Democrats, respectively. [Applause.] 
We know that there are these distinct classes in that 
party, and we know further that those who are popu- 
larly called Secession Democrats are the leaders of 
that part\' — the leaders who meet at Trenton, fifteen 
and tvv'enty of them at a time, and consult about the 
interests and plans of the party ; who direct all its 



128 MISCELLANEOUS WRITINGS. 

councils and manage all its affairs, and through whose 
dictation it is that such men as George T. Cobb, of 
Morristown, are thrown overboard, and such men as 
Andrew Jackson Rodgers are nominated for Congress. 
I believe, therefore, that that party, if it comes into 
power, instead of v^ielding the resources of the country 
energetically for the restoration of the Constitution 
and the laws, will, to say the least, be pervaded by 
divided councils ; and, to say all that I think and 
believe, it will be governed by counsels inimical to the 
stability of the republic, its honor and its life. For 
this reason I have felt, and do feel, this to be the most 
important canvass that has taken place within my 
memory, and for this reason also I feel it my duty to 
contribute, if I can, something toward the success of 
the Administration part}^, w^hose object, as I understand 
it, is, first of all, the restoration of the authority of 
the Constitution throughout the whole country, 
[Applause.] If this is not the object — the great object — 
of that party, then I am not a member of it. [Renewed 
applause.] I look upon this idea as the one that 
swallows up all the rest. There are minor issues, it is 
true ; but they sink into insignificance when compared 
with the one great issue of saving our country from 
destruction, and from division, which is destruction. 
Therefore it is that I am here, and that I have con- 
sented to appear before you in this political contest as 
a candidate for your suffrages. I have not sought 
this position ; I do not desire it ; and were it not for 
the principles that are involved in the issue I w^ould 
gladly see my opponent elected instead of myself. 
[Applause.] 

I am not able, as I said before, to speak long 



POLITICAL EXPRESSIONS. 129 

to night ; and my words must be few and pointed. I 
have already indicated what I consider to be the great 
cardinal principle of the Administration party, namely, 
that " The Union must and shall be preser\^ed." [Pro- 
longed cheering.] In whatever way that can be done, 
and be done most effectually, so let it be done. I know 
of no conditions under which our exertions for the 
accomplishment of this great object are to be placed. 
I know of no limits by which they are to be restrained, 
other than the laws of God and the law of nations. 
These -we must obser\^e. Our Constitution gives us 
the broadest scope in which to work ; and I will 
obser\^e here, that it is puerile to say that this or that 
thing in the conduct of the war is " imconstitutional." 
I say that such an assertion is incorrect, illogical, and 
a solecism. Does not the Constitution contain the 
war-power just as much as it contains the habeas 
corpus ? Does it not contain provision for a pow^er 
on the part of the Government to suppress insurrection 
and rebellion ? When those powers are given, all the 
powers that we want are given — all the powers we 
can exercise or that can be exercised within the limits 
that I have named — the laws of God and the law of 
nations. [Applause.] It is idle and worse than idle 
to say that the Constitution has been violated or 
broken in the conduct of this war. There has been no 
such violation ; but they violate the Constitution who 
stand up and do nothing when the Constitution is 
threatened with destruction. [Renewed applause.] 

I am not going to read to this audience — it is not 
necessary that I should — a legal opinion upon w^hat 
the law of nations will permit and what it will 
not permit. I take for granted that the admin- 



130 MISCELLANEOUS WRITINGS. 

istration, having learned counsel around it, is 
advised upon the subject ; and I am walling, 
so long as President Lincoln is at the head of 
afifairs, to confide to him, and to such councillors as he 
calls to his aid, the selection of measures whereby to 
perform this great duty of the Government, namely, 
to restore its authority and that of the Constitution, 
and to save the country from ruin. Had I been Presi- 
dent, I might have done some things differently ; I 
do not say whether I would or would not ; but this 
is not the question. When my captain tells me : 
" Forward, march ! the enem}'- is before you ; " I must 
not stand, look behind me, and say, " Captain, it is 
not time," I tell you that all subordinate questions 
are swrallowed up in the one great and overwhelming 
question of self-preserv^ation, and they are quibblers 
who say that what is done to effect that end is 
"unconstitutional." [Prolonged applause,] 

Having said so much, what more need I sav ? 
There is the whole thing before you. Most of you 
here know me. You know^ that I never was an 
abolitionist, [Laughter,] You knoAV that I was 
always a conservative of the conservatives. The last 
time — indeed, the only time — I ever spoke in this hall, 
was on the evening of the 22d of Februani', 1861, 
just before President Lincoln arrived at Washington ; 
and some of you mav remember what a doleful speech 
I made on that occasion. [Laughter.] I remember 
it, I made it from nw heart. Nothing but com- 
promise would suit me at that time. I was for com- 
promise to the last — ^for 36:30 through to California — 
[laughter] — for anything in God's name rather than 
blood or division. But the moment they began to 
throw mud at the irlorious old flag;, fired on Fort 



POLITICAL EXPRESSIONS. 131 

Sumter and levied war, then we were in [laughter 
and cheers] ; and then came up in me, as it came up 
at the same time in millions at the North of every 
shade of opinion before that, a sentiment of devotion 
to the Constitution and to the integrity of the 
republic — the whole republic — first of all and before all. 
Then we heard and thought and felt no more on the 
subject of compromises. The day of compromise was 
ended; it was then the day oi fight. [Applause.] 
"Not that we loved CcEsar less, but that we loved 
Rome more "; not that we felt any the less disposed to 
do justice to the Southern States or people, but that 
■\ve felt that we must above all do justice to ourselves 
iind our country. [Prolonged applause.] 

How we have been and are misunderstood and 
misrepresented ! Because v^^e love our country more 
than all things else, and therefore have discarded the 
idea of compromise when compromise is no longer prac- 
ticable, and ^len there is no longer any use in raising 
that cry, Ave arc called abolitionists. [Laughter.] Is 
this fair ? / do not want any better Constitution 
than the old one. I want to see that Constitution 
stand just as it is, word for word and letter for letter, 
.as long as I live. I do not want it altered ; I do not 
want it violated ; I do not want to see the relation of 
the States to each other, nor the relation of the people 
of the different States, altered in the slightest degree. 
I would have all these remain as they were ; but in 
prosecuting this war for the preser\'ation of the Union, 
I \vould prosecute it as I would prosecute anv war, 
by taking the ships of the enem\', if necessary, with- 
out compensation ; by taking the horses of the enemy 
without compensation ; yea, b\' taking their lives 
w^ithout compensation. [Applause.] 



132 MISCELLANEOUS WRITINGS. 

If any person cannot hold in his head these two ideas, 
it must be either because he shuts his eyes and ears to 
them, or because he is so low in the scale of intellectual 
existence that he cannot receive and understand two 
ideas at once. They say on the other side, '* The 
Constitution as it is and the Union as it was "; and 
so do I. [Applause.] 

I say it just as strongly as they do ; but at the 
same time I say, " Boys, load your guns ; take aim ; 
fire ! " [Applause.] 

And I say it because that is not a violation of the 
Constitution. The suppression of rebellion by what- 
ever means the law of nations allows, is permitted to 
ever}' Government in the world ; it is permitted to our 
Government ; and the idea sought to be foisted upon 
the people of the North, that we violate the Constitu- 
tion when we do this or do that to quell the rebellion, 
is the secret whisper of the enemy — I mean the old 
enemy — the Arch Enemy. [Laughter.] 

These are general principles, and they are principles 
by which we can stand now and at all times with 
perfect security. No one can assail us on such a plat- 
form as this ; it is the platform of the Constitution, 
and upon that I stand and mean to stand whether 
elected or not. [Applause.] 

One word more regarding the merits of the ques- 
tion. Not only are these our principles — that the 
Union must and shall be preserved ; and that what is 
done for its preser\^ation is \vell done — but they are 
vital, vital, vital ! If we do not carry them out we 
are undone. Not onlj^ are the}'^ our principles, but 
they are the only principles that can save us from per- 
dition. Some good men, especialh^ among the Seces- 



POLITICAL EXPRESSIONS. 133 

sion Democrats, say, " Let them go ; divide the 
country'; it is large enough for two republics." Ah, 
my fellow-citizens, if we once admit that doctrine of 
dividing the country, in the first place where will you 
draw your line ? Through the Potomac ? Along 
Mason and Dixon's line ? On the south side of 
Virginia, or where ? In the next place, after you have 
drawn it, how long will it stay drawn ? [A voice, 
'* That's it."] And in the third place, after ^^ou have 
made one division, how long will it be before another 
and another will follow ? No, my fellow-citizens, we 
must stand by this Constitution and Union as the 
ark of republican institutions and of civil freedom 
throughout the world. [Applause.] 

In other countries they entertain a principle of 
loyalty to their sovereigns. In this country, our 
loyalty has all been directed to the Constitution made 
by our fathers, by mutual concessions and mutual 
sacrifices — the best Constitution in the world. Loyalty 
to the Constitution of their country is the only loyalty 
Americans know. Divide the republic, and this 
loyalty that has grown up in our bosoms from infancy 
is gone ; and there is no man here who, if the republic 
was divided, would not go about the streets in mourn- 
ing ; for the great bulwark of republicanism in the 
world will have proved a failure. Foreign nations 
would point at us as the great example of the failure 
of free institutions ; and Americans going abroad, 
instead of being respected, would be pointed at and 
despised. If our country were to be divided and our 
Constitution and institutions to fail, I would not 
travel in Europe any more than I would travel in the 
realms of darkness. [Applause.] I would not show 



134 MISCELLANEOUS WRITINGS. 

my head there ; I would be ashamed to do so ; and I 
would not allow an Englishman or a Frenchman to 
enter my house. [Laughter and applause.] I tell you, 
my friends, that if we give up this heritage of ours 
we give up the most precious thing that has ever 
been planted by human hands upon this globe. Shall 
we give it up ? [No ! No !] Shall we give it up to those 
Southern traitors — aristocrats who have no love for free 
institutions, and who are determined that if they can- 
not rule thev will ruin ? Let us drive them into the 
sea. Let us re-establish the authority of the Consti- 
tution all over the land. Let us do it, even if it 
involve the sacrifice of the population of one-third of 
the States. If they will not ^aeld to the Constitution 
and laws without being sacrificed, let them be sacri- 
ficed. I tell you that our free institutions are worth 
more than that sacrifice. Let these institutions be 
transmitted by us to our posterity with all the living 
vigor with which we received them from our fathers. 
[Applause.] There can be no compromise about that, 
gentlemen. I do not say this because I hate the 
Southern people or their institutions. I do not care 
a straw about their institutions, comparatively. That 
is not the question ; it is, " Shall they be permitted to 
destroy our Government ? " [No ! No !] 

Now, there are some minor questions that our 
opponents have talked a great deal about — the habeas 
corpus, the act of confiscation passed by Congress, and 
the President's proclamation of emancipation. I have 
opinions upon all these subjects, and I would be very 
free to express them if I were able. I really am not 
able now ; but I may have an opportunity of meeting 
you upon some other occasion during this canvas, and 



POLITICAL EXPRESSIONS. 135 

of saying what I have to say upon these matters. 
But after all is said that can be said, what miserable 
issues are they, each and all, compared with the great 
issues I have spoken of. 

Oh, gentlemen, these men would not talk so much 
about the habeas corpus, and the President's procla- 
mation, if there was not something rotten in their 
bones. [Applause.] I believe in the habeas corpus, 
and I do not know whether or not I would have issued 
the emancipation proclamation had I been President ; 
but the President must kno^v a great deal better than 
I do the reasons for it, and I am -willing to take for 
granted that he does. At any rate I am not going to 
quarrel with him about it just now. I am going to 
stand b}'- him until this war is over ; and if it be not 
over when he goes out of office and another man is 
put in his place, I do not care to what party he 
belongs, if he is only loyal to the country and the 
Constitution, I will stand by him too. [Applause.] 

I know that in our particular community there 
are many respectable men — men who formerly belonged, 
many of them, to the old Whig party, God bless it ! 
[Cheers] — conservative, good men, who think that by 
making a peace with the South and letting them go, 
trade will revive and things will go on better. Now I 
have respect for these men. I know that they are in 
a false position — that they are influenced in a great 
degree b}^ their pecuniar)^ interests. Men cannot help 
this ; and we are bound to have charity for them. I 
respect these men, for they have been at the very bot- 
tom of the prosperity of this cit}^ ; but their principles 
I do not agree with ; and if there are any of those 
gentlemen here now let me say to them that they are 



136 MISCELLANEOUS WRITINGS. 

mistaken. No such peace with the South will ever 
bring back the business that has been lost. If it is 
ever brought back, it will be by the authority of and 
under the old Constitution and the old flag. [Great 
applause.] Let me tell a^ou that the South is dealing 
with the English manufacturers and French manufac- 
turers, and the}' will whistle at our Newark manufac- 
turers under an^^ peace we maj^ make with them. 

Let me say, too, that the prosperity of Newark 
is not bound up in any compromise with the 
Southern States or in any unhoW peace with them, 
which may involve a division of the cotmtry, but in 
the cause of the old Constitution and the old flag. 
Let us re-establish their authority, and we re-establish 
the prosperity of Newark, of its manufactures and its 
manufacturers. [Loud applause.] 

I make these remarks in all kindness to those men ; 
for I believe them to be honestly mistaken ; but the 
mistake is made in such a grave matter that I am 
sorrj- that they make it— sorrj^ for them and for the 
cit}' in which they live. 

In order to be accurate with regard to the views I 
hold in reference to the present contest, I cannot do 
better than refer to the resolutions passed by the 
Convention from which I received the nomination. I 
looked at these resolutions to see what the sentiments 
of the Administration party there assembled were ; 
and I will now^ read one or two of them : 

Resolved, That the friends of the National Administration • in 
New Jersey desire, first of all, a republican form of government — free, 
great and strong ; [None of your petty little republics that command 
no respect in the world ; but a republic, free, great and strong, recom- 
mending free institutions throughout the earth by its power as well 
as its freedom], securing to its citizens the blessings of peace, and 
challenging the respect of the world. 



POLITICAL EXPRESSIONS. 137 

Mr. Bradley continued reading the resolutions, 
which were published at the time, commenting on them 
seriatim and fully endorsing their spirit. He then pro- 
ceeded to say : 

In the spirit of those resolutions I say to the 
patriotic members of the Democratic party who may 
hear my voice, " Come, go with us, and it shall do 
thee good ; " for our only object is to restore the coun- 
try to its normal condition, to restore the authority 
and majesty of the Constitution and the laws. If 
this is not the object of the Administration party, 
then, as I have already said, I am not a member of it. 
And I also say that those resolutions tell the truth— 
that in this struggle no man can be neutral ; he must 
be active in favor of the Government and in favor of 
putting dov^Ti the rebellion, or he must be opposed to 
it. Indifference is opposition. Men cannot let their 
arms hang by their sides and say, " Well, I hope 
the national arms will succeed in putting down the 
rebellion ; but I have a great many reasons why I 
do not wish to take any part in this contest." A man 
who acts thus is like the man in the Scriptures, of 
whom it is said, " He that is not with me is against 
me ; and he that gathereth not with me scattereth 
abroad ; " for, fellow-citizens, this cause of ours is a 
holy cause — the cause of civil freedom — the cause of 
human rights. In saying this, I do not refer to the 
question of domestic slavery ; I am speaking of the 
great mission of this country. It is a mission of civil 
freedom and free institutions ; and if it falls they fall. 
For a succession of ages — long ages — will it and they 
lie in the dust before a new age shall arise in which 
freedom can again plant her standards successfully 
upon the mountains and the plains and the valleys of 
the earth. [Loud and long continued applause.] 



SPEECH 

OF 

JOSEPH P. BRADLEY. ESQ.. 

THE UNION NOMINEE FOR CONGRESS, 

AT 

JERSEY CITY, TUESDAY EVENING, OCTOBER 28, 1862. 



Gentlemen of Hudson County : — It gives me great 
pleasure to have the opportunity of addressing you 
upon the issues of this campaign. I am not known 
to many of you, personal^, and therefore it will, of 
course, be a satisfaction to you to see me, and hear 
from me of my views concerning soiue of the great 
issues of this contest. All of j^ou know that I 
was not eager for the position in which my nomina- 
tion has placed me. I acceded to it with reluctance, 
and only from a strong sense of duty. I was especially 
reluctant to be considered a candidate because the 
nomination, according to usage, belonged to Hudson, 
and I made it a special condition that I was not to 
be named as a candidate w^ithout the consent of 
Hudson County. I stood to that condition as a 
matter of honor between the different parts of the 
district. The law of honor on such subjects is imper- 
ative. It therefore gave me great pleasure to under- 
stand that the nomination came from 3^ou, and I con- 
sider that this fact imposes upon me peculiar obliga- 



140 MISCELLANEOUS WRITINGS. 

tions toward Hudson county, and if I should be so for- 
tunate, or unfortunate, as the case may be, as to be 
elected, I shall feel under special obligations to regard the 
interests of this part of the district. I hold that any 
man should be proud to be the representative of this 
district. There is no district in the country which 
a man ought to be more proud to represent than the 
Fifth District of New Jerse3\ Commerce and manu- 
factures concentre here their most important interests, 
and the man who faithfully discharges the duties of 
its representative should be familiar with all the rami- 
fications and wants of those interests, and be able to 
represent them fully ; and properly to discharge that 
duty, properly to represent the great commercial and 
manufacturing interests of Jersey City and of Newark, 
one of the greatest centres of manufacturing industry 
in the country, I feel requires more ability than I 
possess, and I shall be obliged to give my sole and 
undivided attention to my duties, in order to do what 
will be required of me. 

But apart from the local interests of this district, 
w^e have at this particular period of our history, issues 
before the country of great and paramount import- 
ance — national issues, than ^lich none more important 
have been presented to the American people since they 
have been a nation. None, I say, more important. 

In the year 1788, an issue was presented as import- 
ant as the present, but never one of greater importance. 
Then, the question was, shall we adopt the noble 
Constitution under which we live, which should consti- 
tute us one countiy, one nation, one people, bound up 
to one destiny ? Now the question is whether we 
shall remain so. 



POLITICAL EXPRESSIONS. 141 

Two years ago to-day, m}^ fellow-citizens, the sun 
in his dail^'- round shone on no people so contented, so 
happy, so prosperous as ourselves. The husbandman 
tilled his fields on every hillside and tended his flocks 
and herds in every valley of this broad land, enjo^ang 
to the utmost the blessings of a freedom consistent 
with the good order of society, gathering the full 
and rich rewards of his honest toil. No poverty 
cursed the land. Pauperism scarcely existed — we 
hardly knew w^hat it was. Every man that w^as able 
to work and willing to work lived like a prince. 
Everyone enjoyed the utmost freedom. He felt he 
belonged to a great and noble country, and he par- 
ticipated in and represented a portion of that great- 
ness and nobility. An American citizen was then 
respected by all, and he respected himself wherever he 
went. To-day, if an American should travel in Europe 
and name himself an American, he would be a jest 
and a b^^-word. To-day, instead of being great and 
happy, and prosperous, we are divided, rent and torn 
by civil war, and engaged in a terrible struggle to 
save the nation from destruction, to preserve our insti- 
tutions, and vindicate the authority of the Constitution 
and lav^s. 

What would our Government be worth, what 
would our Constitution be w^orth, Avhat would we be, 
Avhat could we do, if wq become a divided people ? 
We would be like the petty States of Germany, with- 
out power, without resources, "without any of those 
attributes of a nation which command the respect of 
the world, and entirely at the mercy and control of 
greater and stronger powers. And Avho shall draAv 
the line if we divide ? What magician wnth his w^and 



142 MISCELLANEOUS WRITINGS. 

shall establish a perpetual line of division between 
one part of the country and the other ? Where shall 
it be ? Along the Potomac, south of Virginia, south 
of North Carolina, Mason and Dixon's line — where ? 
Once admit the principle of division and how^ soon 
will v^e have to draw the line again ? How soon 
would the West separate from the East, Pennsylvania 
withdraw from New York, or both from New England ? 
No, gentlemen, admit for a moment this principle, 
and we have no country at all. The fabric our fathers 
raised and swore to defend, that moment crumbles 
into fragments — into petty States, to belong to which 
would be no honor, and would compel no respect. 

New Jersey, noble little State, in whose fame we all 
feel so just a pride. Who in our owii land is not 
proud to call himself a Jerseyman ? Yet who, abroad, 
would think to call himself simply a Jerseyman ? We 
would call ourselves Americans, and in this name 
something of the respect would attach to us which 
formerly attached to the name of Roman citizen. 
This would be so because the nations have learned to 
respect our greatness and our power. These con- 
stituted us the bulwark of freedom and free 
institutions in the world. It was this vv'hich gave 
us respect in the eyes of the Vk^orld. Our ships, 
our commerce, our citizens, were all honored under 
the broad shield of our nationality. Take away this, 
and all power, all respect is gone. We become nothing 
but petty States, subject to the beck and dictation of 
every great power in the world. We have all been 
brought up with a love of our country — brought up 
to believe that it is the best country in the world. In 
this country, at least, we thought we saw the true 



POLITICAL EXPRESSIONS. 143 

and final success of republican institutions. This love 
of countr\' has grown in our bosoms to be a passion. 
In other lands, there is loyalty to the person of the 
sovereign ; here our loyalty fastens upon the Consti- 
tution and the laws, and upon our free institutions. 
If these are destro^^ed, this sentiment of loyalty would 
be crushed, and we should go about the streets in 
mourning. We should be broken dow^n as a nation, 
and our great experiment would be a failure. [Ap- 
plause.] Gentlemen, these sentiments and ideas lie 
at the bottom of all our principles and instincts as 
American citizens — members of this great republic. 
They lie at the bottom of all that we are contending 
for in this struggle. The man w^ho does not feel these 
sentiments is a traitor at heart. [Great applause.] 

Now, gentlemen, w^ho are the authors of this 
wicked rebellion which has been excited in the Southern 
States against this glorious Government ? How did 
it arise ? Many say the North are the authors of it. 
[Mr. Bradley here read an extract from a speech deliv- 
ered in Ne^vark a short time since before a Democratic 
convention, in which the speaker justified secession, 
and affirmed that the nation could never be saved 
while the present crew are aboard the ship of State, 
and declaring that they must be got rid of, if the ship 
had to be scuttled and sunk, and lowered to the deck, 
and the crev^ drowned out.] Mr. Bradley' then pro- 
ceeded : 

Now, fellow-citizens, I do not justify the intemper- 
ate language used by some Northern fanatics. I never 
did justify it. I have always thought it wrong in 
principle. I am speaking the sentiments of all conser- 
vative men, and I say we were always willing to con- 



144 MISCELLANEOUS WRITINGS. 

cede to the South all their just rights — the entire control 
and regulation of their own affairs. The Constitution 
gives us no power to meddle with them, no more than 
it gives them power to meddle with us. The Consti- 
tution was founded on the idea that the States should 
regulate their own affairs. 

We have also been always w^illing to concede to 
them a fair proportion of the new territory w^hich 
should be acquired by our common treasure and com- 
mon arms. And if there were men at the North who 
disputed these rights, they were few in number, and 
did not represent the general feelings of the North. 
No, gentlemen, it was no invasion of Southern rights 
by the North that produced this wicked rebellion. 
Never, never. It was the devil in the hearts of the 
Southern ringleaders — the determination if they could 
not rule to ruin. That w^as the cause. The Southern 
people themselves were not in favor of this rebellion. 
Two years ago they would have voted down secession 
if they could have expressed their honest sentiments 
at the ballot-box. But they were coerced and deceived, 
and the truth was kept from them until they have 
become mad in this great war against the Constitution 
and the country — perfectly infuriated. This conspiracy 
has been ripening for thirty years among Southern 
politicians. They foresaw that power would depart 
from their grasp, and they concocted this rebellion. 
It was Calhoun and his compeers who were at the 
bottom of it. They are the guilty men whose lives 
ought to have paid the forfeit. General Jackson — God 
bless him — ought to have hung Calhoun, and then the 
seed would have been destroyed which has grown up 
and ripened to such a fearful harvest. 



POLITICAL EXPRESSIONS. 145 

Now, fellow-citizens, in view of the enormity of this 
rebellion, in view of this great effort to war against 
and destrojr our Government, what is the duty of the 
Government — the country — our duty ? To put down 
the rebellion cost what it may. [Great Applause.] 
That's the great principle which animates us to-day. 
That's the pole star of our political principles. The 
rebellion must be put down. Nothing else must be 
thought of I see nothing else, can see nothing else. 
It glares in ni}^ eye continually — the Union must and 
shall be preserved. [Enthusiastic applause.] You 
may talk of mistakes, of official acts which are not 
strictly according to law — about violating this or that 
clause of the Constitution. It ma^^ be so. If so, v/e 
can punish them for it after awhile ; but for the pres- 
ent, I repeat it, we have notliing to do but to put 
down the rebellion, and hold up the President's hands 
Vv'hilst he is tr3ang to do it. [Applause.] 

Fellow-citizens, you want to knovv^ what my pol- 
itics are ; there they are. They are not the growth 
of a day — they have been growing up in me for fort}'- 
nine j^ears ; they are the outcropping of my whole 
nature. I have grown up from childhood to love our 
glorious Constitution and Union, and that love has 
become a passion of my nature. 

I have seen in a speech made not far from this 
place the sentiment that we must be kind and conciliat- 
ing to our Southern " brethren "; that we must not 
deal harshly with them, etc. 

Gentlemen, up to the time that the war came, up 
to the time that the Relicllion became a fact, I coul 1 
endorse that sentiment with all my heart. I coul '\ 
go with any man or set of men in effecting a con.- 



146 MISCELLANEOUS WRITINGS. 

promise with the South. I did join, in fact, in Decem- 
ber, 1860, in an endeavor to get up a compromise 
which would have satisfied the Southern people. I 
spent several weeks in Washington, giving my whole 
time to this matter, giving all my heart and energies 
to it, because of my love for the Union, and my hatred 
of blood. I thought then an honorable compromise 
could be effected, and I could then say " Southern 
brethren " with all my heart. But when they became 
rebels and refused compromise and flung concilia- 
tion in our face and endeavored to destroy our coun- 
tr)^, tXi&j were my brethren no longer. A rebel, a 
traitor, is a criminal, like a murderer, an must be put 
down. If they come in and submit to the authority 
of the Constitution, I can then again hail them as 
brothers ; but not till then. Until then they are 
enemies, and to be dealt with as enemies. The plea 
that v/e cannot do this or that in a war against 
them is absurd. We might as well say we could not 
do such things in a war against England or France. 
They have repudiated the Constitution, and are we 
under the same obligations to them that we would 
be if no w^ar existed ? 

We are bound by the Constitution assured^ ; but 
the Constitution has in it powers relating to war, and 
for the suppression of insurrection and rebellion, as well 
as other powers ; and we have the power to take the 
same steps to put them down as we have to carry on 
a foreign war, and in the exercise of those powers we 
are just as much within the Constitution as we are 
la returning their fugitive slaves in time of peace. 

There is nothing in the Constitution which limits 
or controls the conduct of the war. There is nothing 



POLITICAL EXPRESSIONS. 147 

but the law of nations. And even in regard to that, 
the la\v of nations in respect to a foreign war diifers 
from that in regard to a domestic war. We have a 
right to do things in a domestic w^ar which we 
would not have in a foreign \var. There is not a 
nation in the vsrorld which does not confiscate the 
property of rebels. It is part of the common lav.'. 
This right to confiscate extends in this country 
with regard to lands, onl}^ to the lifetime of the 
guilt\'- person. Therefore, real estate cannot be confis- 
cated Ijejond the lifetime of the guilty parties. With 
that restriction, the power to confiscate is absolute, 
and without that restriction it is absolute in every 
other country in the world. In a foreign war we 
should not possess this right. We could not confiscate 
the property of the citizens of France, as they -would 
owe obedience and allegiance to their own govern- 
ment. But rebels, who fight against their own gov- 
ernment, have not that plea. The law of the civilized 
world says that the property of rebels may be confis- 
cated. So that, while we are bound by the law of 
nations, it is the law of nations as applied to a 
rebellion. 

Now, whether confiscation is or is not expedient, 
is another question. I only say it is constitutional — 
i. e.y it is not unconstitutional. 

It is not for me, gentlemen, to discuss this or that 
particular measure of the Administration. It is not 
for me to sit in judgment in matters of such minor 
importance. If the line of authority has been over- 
stepped we must not stop now to punish the guilty. 
Now we must put down the rebellion, and restore the 
authority of the Constitution and laws. 



148 MISCELLANEOUS WRITINGS. 

Mr. Bradley then referred to the dut^^ of every 
citizen to support the Government, instancing the 
example of the Federalists in the war of 1812, who 
opposed the war violently, and yet for the most part, 
when the war actually begun, stepped gallantly for- 
ward to lend their aid. They went forth like men, 
and fought side by side with Democrats, and 
those who then stood back, and let their hands hang 
idly by their sides, were forever branded as traitors to 
their country. [A voice, " Buchanan."] 

When the country^ is actually engaged in a war, we 
must stand by the coimtr)^ If the Government does 
wrong, even, I say, stand by it, and see the war 
through, and attend to the wrong afterwards. That's 
what we are bound to do now. Party issues are to 
be discarded. We should discard every issue but one, 
and that is — our country must be saved and the 
authorit}^ of the Constitution vindicated. Mr. Brad- 
ley then referred to the possibility of England and 
France interfering in this war. If they do, said he, 
we shall have a more solemn duty than ever before 
to perform. 

The question arises, what will be our dntj then ? 
Have we ever injured them, or interfered with them 
during all their wars ? Then what right have they to 
interfere with us ? Neither the laws of God or of 
nations (except as concocted by themselves), give 
them any right to interfere, and if they do, it will be 
because they hate our institutions and will be glad 
to see their downfall. We are not called upon to 
declare a policy in advance, j^et I, for one, would let 
those nations know that they can't interfere with us 
with impunity [great applause] ; that there will be 



POLITICAL EXPRESSIONS. 149 

blows to take as well as to give ; that there are 
domestic dissensions and discontent in other countries 
as w^ell as ours. I Avould let them know in advance 
that if they dare stir up the lion in his lair they may 
feel the weight of his paw^. I do not say what policy 
should be pursued, but I will say that these are mv 
strong convictions. Now, gentlemen, some of these 
remarks of mine may not be those of a politician. I 
talk straight out and straight on. You have my view^s, 
you have them frankly, fulh'. Our opponents are full 
of the wisdom of the serpent, if not the harmlessness 
of the dove. They profess to be in favor of the war, 
yet w^e see in their councils, in their most secret coun- 
cils, men whom we know, from their antecedents, to be 
secessionists at heart. What they mean I don't know, 
but I do know that those who are heartily for aiding 
the Administration in carrying on the war can't be far 
wrong. 

I deprecate party politics in a time like this. I 
w^ould say to all patriotic men of every party, let us 
unite in this great and holy cause until peace shall be 
restored on the only basis on which it can permanently 
stand — the unity of the whole country under the old 
Constitution and the old flag. [Loud cheers.] 



THE CONSTITUTIONAL AMENDMENT. 



LETTER 

FROM 

JOSEPH P. BRADLEY, ESQ., 

OF NEW JERSEY, 

TO 

MR. CHARLES KNAP, 

ON THE 

QUESTION OF THE NUMBER OF STATES REQUISITE TO 
RATIFY AN AMENDMENT TO THE CONSTITUTION. 

Note. — The publication of the following letter at this time calls for no 
apology. The subject is so important in itself, and the views contained in 
the letter impressed me as so conclusive, that it seemed to me eminentU^ 
proper to give them publicity, and, at my urgent request, the writer has 
given his consent to such disijosition of it. C. KNAP. 

Washington, Febrttary 20, 1865. 



Washington, Februar^^ 18, 1865. 
My Dear Knap : Agreeably to yottr request, I 
proceed to jot down the substance of the views 
expressed in our conversation to-daj, in relation to 
the number of States required to ratify the Constitu- 
tional amendment abolishing slavery. I apprehend 
you will find very little that is new, as most 
right-thinking men, who have given attention to 
the subject, have undoubtedly come to the same 
conclusion. But the persistency w^ith which certain 
leading journals and politicians detract from the 
just authority of the Government and the validity 
of its proceedings as being unconstitutional, on tlie 
plea that certain integral and essential elements 



152 MISCELLANEOUS WRITINGS. 

of the Confederacy (as they love to teiin it) are 
not represented, renders it proper, and it is high 
time, that all such heresies should be put down by the 
American people. While we are at the -work of restor- 
ing and reinaugurating the truth, w^hich has so long 
been concealed in the deep w^ell of Virginia abstrac- 
tions, we should strangle each head of that hydra of 
error w^hich has led our country to the verge of 
destruction. If, from motives of expediency or clem- 
ency, we should conclude, in any case, to waive the 
truth, w^e ought, at least, to recognize it, and place it 
upon its own proper pedestal. A different course 
will only lead to misunderstandings and embarrass- 
ments hereafter. I consider the doctrine that a State, 
by withdraw^ing from the Union, can produce any 
deficiency in the " quorum," or other derangement 
of the organic functions, so as to render constitution- 
ally nugatory any action or proceeding of the Govern- 
ment, quite as repugnant to all just ideas of constitu- 
tional law- as is the doctrine of secession itself. And, 
therefore, I entirelj^ concur in the conclusion arrived at 
by Mr, Sumner in the joint resolution offered by him 
in the Senate on the 4th instant, that the rebellious 
States are not to be counted in estimating the number 
of States of which three-fourths are required to ratify 
and validate the amendment in question. Whether it 
would or would not be politic to count them is a 
different question, wdiich I do not discuss. 

Congress having, by a vote of two-thirds of both 
Houses, proposed this amendment to the legislatures 
of the several States, the fifth article of the Constitu- 
tion declares that, " w^hen ratified by the legislatures 
of three-fourths of the several States,^^ it will be valid 



THE CONSTITUTIONAL AMENDMENT. 153 

as a part of the Constitution. The question is, What 
are " the several States " intended in that article ? I 
contend that they are those, and only those, States 
which are connected with the Union as States when 
the amendment is passed upon. 

It is certainly clear that the Constitution did not 
refer merely to the thirteen States which were then 
organized, and in confederate relations with each other. 
It might have been only nine of those States, had only 
nine adopted the Constitution ; and as the power to 
admit new States is expressly given, it may be a hun- 
dred, if so many shall at any time be formed under the 
Constitution. Otherwise the object of the clause, 
namely, to secure a large preponderance of the body 
jDolitic in favor of an amendment before giving it valid- 
ity, would be frustated. If three-fourths of the original 
thirteen were meant, ten of the old States could at 
any time ratify an amendment which would bind, per- 
chance, a hundred States. This could not have been 
the intent. The clause, therefore, must have respect to 
the States which, in the sense of the Constitution, 
are, or shall be, States whenever an amendment is 
proposed, whether they include all or do not include 
any of the original thirteen. 

This point being established, the next proposition, 
equally clear and demonstrable, is, that, although 
there may be and is such a thing as actual secession, 
there is no such thing as a right of secession, am^ 
more than there is a right of rebellion or revolution. 
The word "right" indicates a liberty of action or 
possession guaranteed by the social law, that is, the 
law which binds civil society together. But revolution 
is an abrogation of the pre-existing bonds of civil 



154 MISCELLANEOUS WRITINGS. 

society. The very provision for making amendments 
to the Constitntioii was intended to obviate every 
pretence for revolution. Now, by adopting the Con- 
stitution, the people of the United States erased and 
abrogated all State jurisdiction in the matters of sover- 
eignty embraced wnthin the scope of that instrument, 
and, in so many words, declared : " This Constitution, 
and the laws of the United States made in pursuance 
thereof, and all treaties made, etc., shall be the supreme 
law of the land." These portions of the general 
sovereignty were lodged in the general Government, 
not as a fief to be holden by any sort of tenure of or 
from the State sovereignties, but as the undoubted 
prerogative and allodium of the whole people of the 
United States, independent, outside of, and above the 
State sovereignties ; so that, in very truth, the Con- 
stitution and laws of the Federal Government became, 
in their nature, as they v.^ere thus declared to be, 
" the supreme law of the land." After this no State 
had or could have any right to secede. To do so 
would be to set at naught or at defiance ** the supreme 
law of the land," which no State can repeal, and over 
which no State has control. Within the constitutional 
scope, v^hich embraces all the most important branches 
of national sovereignty, such as the foreign relations, 
vv^ar, peace, army, navy, controversies between the 
States themselves, commerce, citizenship, money, 
weights and measures, etc., there is but one country, 
one " land," and one " supreme law of the land." Just 
as well might any county in a State claim a right to 
secede from the State, as for a State to claim the right 
to secede from the Union. The attempt in either case 
would be an attempt to disrupt the bands of civil 



THE CONSTITUTIONAL AMENDMENT. 155 

society as organized in that community of which the 
seceding body is a part. A State is a Hmited and 
subordinate sovereignty — Hmited and subordinate, 
because destitute of those transcendent powers which 
more particularly characterize nationalit3^ Those 
powers have, by the ultimate source of political 
power — a source superior to that from which any State 
power is derived, namely, the whole people of the United 
States — been lodged in a separate and superior gov- 
ernment. And hence, if a State could lawfully secede, 
it would only carry with it legitimately those subordi- 
nate branches of sovereignty which it possesses, and 
which are not lodged in the general Government. It 
is true, countries and peoples, formerly one, do some- 
times violently separate from each other. But it is 
revolution w^hen the3^ do so ; and it is revolution here. 
But while there is no such thing as a right of 
secession, and ^vhile, in all national respects, as before 
said, we are one people, and this is one country, yet 
in the eye of the Constitution, the States for many 
purposes have separate existence and status as such. 
The members of the House of Representatives are 
elected by the people of the several States — no con- 
gressional district being formed from two States ; 
each State is entitled to a certain number of Repre- 
sentatives and Senators ; each State owes certain 
constitutional duties to the other States, and to the 
general Government ; and the general Government 
owes certain duties to the States, one of which 
is to guarantee to every one of them a republican 
form of government, and to protect them from inva- 
sion and domestic violence. The States, therefore, 
having a separate existence, and being clothed with the 



156 MISCELLANEOUS WRITINGS. 

forms of political sovereignty, and acting in all domestic 
and internal matters as independent communities, 
they can, de facto, secede, and by their actual secession 
cause a vacancy in the associated circle of communities 
forming the United States, which is calculated to 
embarrass a fair exposition of Constitutional rights 
and duties, both of the general and State Govern- 
ments. This is the difficulty to be solved. 

Now, suppose a single State in the national body 
politic — Maryland, for example — should, through all 
its organisms, popular, legislative, executive, judicial, 
secede from the Union, and repudiate the Constitution, 
and forcibly prevent the exercise of any Federal 
authority in her territory, what -would be the status 
of that State ? The territory of the State would, of 
course, remain where it \vas in spite of secession, and 
the inhabitants would remain upon the territory. 
But the State does not consist merely of the one nor 
of the other, nor of both, without a certain political 
organization. If, for example, all the inhabitants of 
that State, with their entire political organization, 
should remove to the Western plains, and there con- 
tinue their social and political life, they would no 
longer be the State of Maryland ; and on the other 
hand, without inhabitants and a certain organized 
communitv, the territory of Maryland would cease to 
be a State. It would be the territory w^hich was 
once called the State of Maryland, but it would cease 
to be such. Yet it would not be out of the United 
States, nor free from the laws of the United States ; 
nor would it be so by the supposed act of secession. 

With this preliminary observation, I ask again, 
what would be the status of Maryland after thus seced- 



THE CONSTITUTIONAL AMENDMENT. 157 

ing from the Union ? What would be the status of her 
territorj^ and its inhabitants ? Are they any longer a 
"5tate" within the meaning of the Constitution? 
They ma}^ be de facto a State, in the popular sense of 
the term ; but are they a State in the Constitutional 
sense ? Are they entitled to the rights which the 
Constitution secures to ''the several States ?'' When 
a citizen of Maryland, for example, should come into 
any other State, would he be entitled, any longer, to all 
the privileges and immunities of its own citizens ? Do 
we concede this privilege now, to citizens of Alabama ? 
Ma}^ they come within our lines, and take rooms at 
our hotels, and trade and converse with our people ? 
And in the hj^pothetical case of Marjdand, would the 
general Government any longer be bound to guarantee 
to her a republican form of government ? Would the 
other States be bound to return her fugitives from jus- 
tice and her fugitives from serv^ice ? Would they be 
bound to give full faith and credit to her legislative 
acts and judicial proceedings ? W^ould the Supreme 
Court be bound to hear and decide her controversies 
with the other States ? If Maryland, under such cir- 
cumstances, should send two persons to the Senate of 
the United States, and demand that they should sit in 
that body, would it be allowed ? To ask these ques- 
tions is to answer them. It would be absurd to 
answer them in the affirmative. It is an intuitive 
principle, growing out of the very nature of right, 
and obligation, and law, and, therefore, a fundamental 
maxim of all codes, that he who violates, repudiates, 
and contemns a contract, cannot claim its collateral 
advantages. If it is a lease of land, he loses all claim 
to the land. If it is an agreement, he can claim no 



158 MISCELLANEOUS WRITINGS. 

benefit from the agreement. As respects the bond 
repudiated, he is an aHen ; he has no rights, and no 
claims, except upon the clemency of the other party. 
So he who repudiates and conterLuis the social bond, 
and wages war against mankind, is a pirate, and is 
entitled to the protection of no law, for the very rea- 
son that he has repudiated all law. And so, in the 
case supposed, Marjdand, by repudiating and trampling 
upon the bond of our national social compact, would 
be no longer entitled to any of the benefits or any of 
the considerations of that compact. She puts herself 
out of the pale of the Constitution, and shuts her 
mouth to all objections arising out of her wrongful 
position. 

Then what, in relation to the Federal Constitution 
and Government, would be her condition and status ? 
Though she has seceded in fact, she cannot secede in 
law ; and j'-et having seceded in fact, she — that is, her 
people— are entitled to no regards as " a State." And 
there lies her territory in the very heart of the country, 
cutting it in twain. What are the logical results of 
her condition ? 

Are we told that we must reduce her people to 
obedience ? This the general Government unquestion- 
ably may do, and should do. But still the question 
recurs, what is the Constitutional status of Maryland 
and its inhabitants in the meantime ? And suppose 
they vdll not be reduced to obedience ? They prefer 
extermination ; they fight to the last ditch, and die in 
it ; or they are expelled and banished. What then ? 
Will the territory belong to nobody ? May England 
people it again with colonists ? May France sieze it 
as virgin territorj^, and hold it by right of occupancy ? 



THE CONSTITUTIONAL AMENDMENT. 159 

Has the United States no right of political dominion 
in it ? It seems to me perfectl}^ clear that the Govern- 
ment of the United States would be entitled to invite 
settlers to replant it. If it might do this, would these 
settlers be a State perforce, and without the consent 
of the United States Government ? Is a particular 
tract of land necessarily a State because a State was 
once organized upon it ? This we have seen is not so. 
If, then, new settlers, placed upon the territory by the 
general Government, could not act as a State without 
the consent of that Government, could a people who 
have lost all rights as a State under the Constitution, 
and who, by the strong arm of the Government, have 
been reduced to obedience, claim it as a right to act 
again as a State on that same territory ? Could thej^ 
claim to resume and proceed with all the functions of 
a State, as though nothing had happened ? 

These questions lead unerringly to the true solution 
of the difficulty. 

The territory of Maryland is a part of that coun- 
try, that " land " over which the people of the United 
States have constituted the Federal Government, by 
that Constitution which they have declared to be " the 
supreme law of the land." This territory cannot be 
wrenched from its subjection to the authority of that 
Government. There is, there can be, no right of seces- 
sion. It is a Constitutional solecism. But if the 
people of the State, acting through their State organ- 
ization, and as a State, have forfeited all claim to be 
considered as a State — as in the case supposed the}'- 
clearly would — then it follow^s (and no other conclu- 
sion can be logically drawn) that the general Govern- 
ment has a right to occupy the obnoxious territory by 



160 MISCELLANEOUS WRITINGS. 

its armies, and in all other ways, and to impose such 
condition of habitancy therein as it sees fit to do, and 
as it would have a right to do in relation to any con- 
quered or purchased territory. Any other conclusion 
would be subversive of the Government itself, by 
putting it into the power of any State, by indirection, 
to stop the wheels of government, and thus practically 
to exert the right of secession, which it is admitted 
does not exist. The recreant State by seceding, 
renounces her rights and status as a State, and the 
Government takes her at her word ; but also adheres 
to and enforces that other relation in which her terri- 
tory stands to the countrj^ and Constitution, as an 
integral portion of the territory of the United States. 

It follows as a corollary, that a seceding State, 
which repudiates and disclaims the Constitution, is not 
a State within the meaning of the Constitution, but 
has ceased to be such ; and, therefore, that its action 
cannot in any manner clog the wheels or embarrass 
the movements of the Government. The territory of 
the United States remains the same ; there is only one 
State the less within that territory. The organization 
of the various departments of the Government, 
executive, legislative, judicial, is not affected nor 
changed. Quorums of representative bodies, such as 
the Senate and House of Representatives, are not 
destroyed or rendered impracticable. The Government 
moves serenely on ; and if the people of a particular 
State will not have the Government to rule over them, 
they simply lose their status as a State in the eye and 
within the meaning of the Constitution, and remain 
subject to the clemency of the Government. 

As a matter of policy and expediency, it might, 
and probablj^ would be advisable, in such a case, to 



THE CONSTITUTIONAL AMENDMENT. 161 

receive the erring sister back again as a State as soon 
as she gets tired of secession. And the most expedient 
manner of doing this might, and perha|3S would be 
that indicated by the enunciations of General Sherman, 
namely, by silently allowing her representatives to 
take their seats in the Congress, whenever Congress is 
satisfied of her returning loyalty, and quietly setting 
the wheels of Government in motion again in her 
territory. Such a course taken by the two Houses of 
Congress would probably be as valid a process for 
readmission as a joint resolution was in the case of 
Texas for the original admission of a State ; for it 
would be tantamount to a joint resolution. 

But be this as it may, in strict right, and as a 
matter of Constitutional law, the seceding State, 
while in a state of actual secession, cannot be reckoned 
as a State for the purpose of claiming any rights or 
interposing any obstacles to the action of the Govern- 
ment or people of the United States, or for any other 
Constitutional purposes. 

To admit for a moment that the wrongful secession 
of a State, or a number of States can embarrass the 
proceedings required to amend the Constitution, or to 
perform any function of the Government, would be to 
enable disloyal and rebellious States to deprive the 
people of loyal and faithful States of their most valued 
privileges. One of the most valuable privileges secured 
to the people of the United States is the right to 
amend their Constitution and Government by peace- 
able means — a right which few other nations enjoy ; 
and hence their bloody revolutions for redress of griev- 
ances. Englishmen secured this right by the revolution 
of 1688, and highly do they prize it. The progress of 



162 MISCELLANEOUS WRITINGS. 

ideas in the world, and the steady advance of civiliza- 
tion, require gradual changes in the organic law. 
But, if seceding States are to be included in the roll-call 
of States when an amendment is proposed, the perma- 
nent secession of ten States would forever present a 
bar to any amendment being made, and their tempor- 
ary secession would temporarily suspend the Consti- 
tutional prerogatives of the Government and people. 

We should not for a moment listen to any such 
absurd proposition. If a State secedes, she, by her 
owTi act, ceases to be a State, but her territory does 
not (except by force of successful rebellion) cease to 
be a portion of the territorj^ of the United States. 
Her readmission as a State cannot be claimed as a 
right, but must depend upon the authority and consent 
of the Federal Government. 

It follows as a further corollary, that any amend- 
ment of the Constitution requiring the approval of 
a majority of the States, is valid when approved by 
a majority of those States which adhere to the Govern- 
ment. If others have put it out of their own power 
to co-operate in the matter, either by approval or 
rejection, it is their own fault and their own misfor- 
tune, and not that of the country or of the loyal 
States. And when they come back again as States, 
if they ever do, they will be bound by what the Gov- 
ernment and people of the United States have done in 
their absence ; and they can never plead their own 
wrong as a bar to the validity of such action. They 
might as well complain that the amendment was not 
presented to them for their ratification when they had 
armies in the field to prevent any intercourse with 
them ! For, if they are to be reckoned as States, 



THE CONSTITUTIONAL AMENDMENT. 163 

whose approval or rejection is necessary, they could 
logically argue that a failure to propose to them a 
contemplated amendment would be a fatal objection 
to its validity. 

At the present time eleven States are in a state of 
secession de facto (or rebellion, if that expression is 
preferred), and twenty-five States remain true to the 
Government and Constitution. Therefore, the ratifi- 
cation of the amendment in question hj nineteen States 
not in secession will make it valid as a part of the Con- 
stitution. This is the clear dictate of Constitutional 
law. 

I do not know that the present exigencies of the 
country render this view of the subject practically 
important. Both Houses of Congress virtually assumed 
it as the true one when they declared that a majority 
of the Senators and Representatives elected to each 
House respectively w^as sufficient to form a quorum ; 
thus obviating one of the difficulties which a contrary 
doctrine \vould create. The great desideratum of the 
present hour is to insure the success of our arms in 
quelling the rebellion. That once quelled, there is little 
doubt that three-fourths of all the States, including 
those which have no Constitutional claim to be treated 
as such, but which will undoubtedly be welcomed 
back to their allegiance, will readily be found to 
approve of the proposed amendment. The recruiting 
of the army with stalwart and honest men is at present 
the great and absorbing duty of the nation. 

I am, as ever, j^ours, 

JOSEPH P. BRADLEY. 
Charles Knap, Esq., 

Washington. 



OPINIONS AND REMARKS 

OF 

MR. COMMISSIONER BRADLEY 

IN THE CONSULTATIONS OF THE 

ELECTORAL COMMISSION 

UPON THE 

ELECTORAL VOTES OF FLORIDA, LOUISIANA AND OREGON. 



The following opinions and remarks have been somewhat abbreviated, 
and repetition of the same arguments in the different cases has been 
■omitted. 

THE FLORIDA CASE. 

In this case the objectors to the Certificate No. 1 
(which was authenticated by Governor Steams, and 
contained the votes of the Hayes electors) proposed 
to prove by the papers accompanying the certificates, 
that a writ of quo warranto had been issued from a 
district court in Florida against the Hayes electors on 
the 6th day of December, before they gave their votes 
for President and Vice-President, which on January 
26, 1877, resulted in a judgment against them, and in 
favor of the Tilden electors ; also an act of the Legis- 
lature passed in January, in favor of the Tilden elec- 
tors ; and also certain extrinsic evidence described by 
the counsel of the objectors as follows : 

" Fifthly. The only matters which the Tilden 
electors desire to lay before the Commission by evi- 
dence actually extrinsic will now be stated. 



166 MISCELLANEOUS WRITINGS. 

" I. The Board of State Canvassers, acting on 
certain erroneous views when making their canvass, 
by which the Hayes electors appeared to be chosen, 
rejected v»rholly the returns from the count}^ of Manatee 
and parts of returns from each of the following coun- 
ties : Hamilton, Jackson, and Monroe. 

"In so doing the said State board acted without 
jurisdiction, as the Circuit and Supreme Courts in 
Florida decided. It was by overruling and setting 
aside as not warranted by law these rejections, that 
the courts of Florida reached their respective conclu- 
sions that Mr. Drev^ was elected Governor, that the 
Hayes electors w^ere usurpers, and that the Tilden 
electors were duly chosen. 

" II. Evidence that Mr. Humphreys, a Hayes 
elector, held office under the United States. 

The question w^as argued as to the admissibility 
of this evidence. 



Substance of Justice Bradley's Opinion, Delivered 
February 9, 1877. 

I assume that the powers of the Commission are 
precisely those, and no other, which the two Houses 
of Congress possess in the matter submitted to our 
consideration ; and that the extent of that power is 
one of the questions submitted. This is my interpre- 
tation of the act under which we are organized. 

The first question, therefore, is, v^diether and how 
far, the two Houses, in the exercise of the special 
jurisdiction conferred on them in the matter of count- 
ing the electoral votes, have power to inquire into the 
validity of the votes transmitted to the President of 



OPINIONS IN ELECTORAL COMMISSION. 167 

the Senate. Their power to make any inquiry at all 
is disputed by, or on behalf of, the President of the 
Senate himself. But, I think the practice of the Gov- 
ernment, as well as the true constniction of tlie Con- 
stitution, have settled, that the powers of the President 
of the Senate are merely ministerial, conferred upon 
him as a matter of convenience as being the presiding 
officer of one of the two bodies which are to meet for 
the counting of the votes, and determining the election. 
He is not invested with any authority for making any 
investigation outside of the joint meeting of the two 
Houses. He cannot send for persons or papers. He 
is utterly wathout the means or the power to do any- 
thing more than to inspect the documents sent to him ; 
and he cannot inspect them until he opens thein in 
presence of the two Houses. It would seem to be 
clear, therefore, that if any examination at all is to be 
gone into, or an}^ judgment is to be exercised in relation 
to the votes received, it must be performed and exer- 
cised by the two Houses. 

Then arises the question, how far can the two 
Plouses go in questioning the votes received without 
trenching upon the power reserved to the States 
themselves ? 

The extreme reticence of the Constitution on the 
subject leaves wide room for inference. Each State 
has a just right to have the entire and exclusive con- 
trol of its own vote for the Chief Magistrate and head 
of the republic, without any interference on the part 
of any other State, acting either separately or in 
congress with others. If there is any State right of 
which it is and should be more jealous than of any 
other, it is this. And such seems to have been the 



168 MISCELLANEOUS WRITINGS. 

Spirit manifested by the framers of the Constitution. 
This is evidenced by the terms in which the mode of 
choosing the President and Vice-President is expressed. 
"Each State shall appoint — in such manner as the 
legislature thereof may direct — a number of electors 
equal to the whole number of Senators and Represent- 
atives to which the State may be entitled in the Con- 
gress : — but no Senator or Representative, or person 
holding an office of trust or profit under the United 
States, shall be appointed an elector. The electors 
shall meet in their respective States and vote by ballot, 
etc." Almost ever}^ clause here cited is fraught with 
the sentiment to w^hich I have alluded. The appoint- 
ment and mode of appointment belong exclusively to 
the State. Congress has nothing to do with it, and 
no control over it, except that, in a subsequent clause, 
Congress is empowered to determine the time of 
choosing the electors, and the day on which they shall 
give their votes, which is required to be the same day 
throughout the United States. In all other respects 
the jurisdiction and power of the State is controlling 
and exclusive until the functions of the electors have 
been performed. So completely is Congressional and 
Federal influence excluded that not a member of Con- 
gress or an officer of the general Government is 
allowed to be an elector. Of course, this exclusive 
power and control of the State is ended and deter- 
mined when the day fixed b}^ Congress for voting has 
arrived, and the electors have deposited their votes 
and made out the lists and certificates required by 
the Constitution. Up to that time the whole proceed- 
ing (except the time of election) is conducted under 
State law and State authority. All machinery, 



OPINIONS IN ELECTORAL COMMISSION. 169 

whether of police, examining boards or judicial tribu- 
nals, deemed requisite and necessary for securing and 
preserving the true voice of the State in the appoint- 
ment of electors, is prescribed and provided for by the 
State itself and not by Congress. All rules and regu- 
lations for the employment of this machinery are also 
w^ithin the exclusive province of the State. All over 
this field of jurisdiction the State must be deemed to 
have ordained, enacted, and provided all that it con- 
siders necessary and proper to be done. 

This being so, can Congress, or the tw^o Houses, 
institute a scrutiny into the action of the State 
authorities, and sit in judgment on v^hat they have 
done ? Are not the findings and recorded determina- 
tions of the State board, or constituted authorities, 
binding and conclusive, since the State can only act 
through its constituted authorities ? 

But, it is asked, must the two Houses of Congress 
submit to outrageous frauds and permit them to pre- 
vail without any effort to circumvent them ? Certainly 
not, if it is within their jurisdiction to inquire into such 
frauds. But there is the very question to be solved. 
Where is such jurisdiction to be found ? If it does not 
€xist, how are the two Houses constitutionally to 
know that frauds have been committed ? It is the 
business and the jurisdiction of the State to prevent 
frauds from being perpetrated in the appointment of 
its electors, and not the business or jurisdiction of the 
Congress. The State is a sovereign power within its 
ow^n jurisdiction, and Congress can no more control or 
review the exercise of that jurisdiction than it can 
that of a foreign government. That which exclusively 



170 MISCELLANEOUS WRITINGS. 

belongs to one tribunal or government cannot be 
passed upon by another. The determination of each 
is conclusive within its own sphere. 

It seems to me to be clear, therefore, that Congress 
cannot institute a scrutiny into the appointment of 
electors by a State. It would be taking it out of the 
hands of the State, to which it properly belongs. 
This never could have been contemplated by the people 
of the States when they agreed to the Constitution. 
It would be going one step further back than that 
instrument allows. Whilst the two Houses of Con- 
gress are authorized to canvass the electoral votes, no 
authority is given to them to canvass the election of 
the electors themselves. To revise the canvass of that 
election, as made by the State authorities, on the sug- 
gestion of fraud, or for any other cause, would be 
tantamount to a recanvass. 

The case of elections of Senators and Representa- 
tives is different. The Constitution expressly declares 
that " each House shall be the judge of the elec- 
tions, returns and qualifications of its own mem- 
bers." No such power is given, and none ever would 
have been given if proposed, over the election or 
appointment of the Presidential electors. Again, 
whilst the Constitution declares that " the times, 
places and manner of holding elections of Senators 
and Representatives shall be prescribed in each State 
by the legislature thereof," it adds, " but the Congress 
may at any time by law make or alter such regula- 
tions, except as to the places of choosing Senators." 
No such power is given to Congress to regulate the 
election or appointment of Presidential electors. Their 
appointment, and all regulations for making it, and 
the manner of making it, are left exclusively with the 
States. 



OPINIONS IN ELECTORAL COMMISSION. 171 

This want of jurisdiction over the subject makes it 
clear to my mind that the two Houses of Congress 
cannot institute any scrutiny into the appointment of 
Presidential electors, as they may and do in reference 
to the election of their own members. The utmost 
they can do is to ascertain whether the State has 
made an appointment according to the form prescribed 
by its laws. 

This view receives corroboration from the form of 
a bill introduced into Congress in 1800 for prescribing 
the mode of deciding disputed elections of President 
and Vice-President, and which was passed by the 
Senate. It proposed a grand committee to inquire 
into the Constitutional qualifications of the persons 
voted for as President and Vice-President, and of the 
electors appointed by the States, and various other mat- 
ters with regard to their appointment and transactions; 
but it contained a proviso, in which both Houses 
seem to have concurred, that no petition or exception 
should be granted or allowed which should have for 
its object to draw into question the number of votes 
on which any elector had been elected. 

This bill was the proposition of the Federal party 
of that day, which, as is well known, entertained 
strong views with regard to the power of the Federal 
Government as related to the State governments. It 
was defeated by the opposition of the Republican 
side, as being too great an interference with the inde- 
pendence of the States in reference to the election of 
President and Vice-President. And taken even as the 
Federal view of the subject, it only shows what mat- 
ters were regarded as subject to examination under 
the regulation of law, and not that the two Houses 



172 MISCELLANEOUS WRITINGS. 

of Congress, when assembled to count the votes, could 
do the same without the aid of legislation. The bill 
was rather an admission that legislation was neces- 
sary in order to provide the proper machinery for 
making extrinsic inquiries. 

It is unnecessary to enlarge upon the danger of 
Congress assuming powers in this behalf that do not 
clearly belong to it. The appetite for power in that 
body, if indulged in without great prudence, would 
have a strong tendency to interfere with that freedom 
and independence which it was intended the States 
should enjoy in the choice of the national Chief Magis- 
trate, and to give Congress a control over the subject 
which it w^as intended it should not have. 

As the power of Congress, therefore, does not 
extend to the making of a general scrutiny into the 
appointment of electors, inasmuch as it would thereby 
invade the right of the States, so neither can it draw 
in question, nor sit in judgment upon, the determina- 
tion and conclusion of the regularly constituted 
authorities or tribunals appointed hj the laws of the 
States for ascertaining and certifying such appoint- 
ment. 

And here the inquiry naturally arises, as to the 
manner in which the electors appointed b}^ a State are 
to be accredited. What are the proper credentials by 
which it is to be made known who have been 
appointed. Obviously if no provision of law existed 
on the subject, the proper mode would be for the 
Governor of the State, as its political head and chief, 
through whom its acts are made known, and by 
whom its external intercourse is conducted, to issue 
such credentials. But we are not without law on the 



OPINIONS IN ELECTORAL COMMISSION. 173^ 

subject. The Constitution, it is true, is silent; but 
Congress, by the act of 1792, directed that "it shall 
be the duty of the executive of each State to cause 
three lists of the names of the electors of such State 
to be made and certified and to be delivered to the 
electors on or before the day on which they are 
required to meet "; and one of these certificates is 
directed to be annexed to each of the certificates of the 
votes given by the electors. And if it should be con- 
tended that this enactment of Congress is not binding 
upon the State executive, the laves of Florida, in the 
case before us, impose upon the Governor of that 
State the same duty. I think, therefore, that it can- 
not be denied that the certificate of the Governor is the 
proper and regular credential of the appointment and 
official character of the electors. Certainly it is at 
least prima facie evidence of a very high character. 

But the Houses of Congress may undoubtedly 
inquire whether the supposed certificate of the execu- 
tive is genuine ; and I think they may also inquire 
whether it is plainly false, or whether it contains a 
clear mistake of fact, inasmuch as it is not itself the 
appointment, nor the ascertainment thereof, but only 
the certificate of the fact of appointment. Whilst it 
must be held as a document of high nature, not to be 
lightly questioned, it seems to me that a State ought 
not to be deprived of its vote by a clear mistake of 
fact inadvertently contained in the Governor's certifi- 
cate, or (if such a case may be supposed) by a willfully 
false statement. It has not the full sanctity which 
belongs to a court of record, or vehich, in my judgment, 
belongs to the proceedings and recorded acts of the 
final board of canvassers. 



174 MISCELLANEOUS WRITINGS. 

In this case, it is not claimed that the certificate of 
the Governor contains any mistake of fact, or that it 
is willfully false and fraudulent. It truly represents 
the result of the State canvass, and if erroneous at all, 
it is erroneous because the proceedings of the canvass- 
ing board were erroneous or based on erroneous prin- 
ciples and findings. 

It seems to me that the two Houses of Congress, 
in proceeding w^ith the count, are bound to recognize 
the determination of the State Board of Canvassers 
as the act of the State, and as the most authentic 
evidence of the appointment made by the State ; and 
that whilst they may go behind the Governor's certifi- 
cate, if necessary, they can only do so for the purpose 
of ascertaining whether he has truly certified the results 
to which the board arrived. They cannot sit as a 
court of appeals on the action of that board. 

The law of Florida declares as follows : 

On the thirty-fifth day after the holding of any general or special 
election for any State officer, member of the legislature, or Repre- 
scntative'in Congress, or sooner, if the returns shall have been received 
from the several counties wherein elections shall have been held, the 
Secretary of State, Attorney-General and the Comptroller of Public 
Accounts, or any two of them, together with any other member of the 
Cabinet who may be designated by them, shall meet at the office of 
the Secretary of State, pursuant to notice to be given by the Secretary 
of State, and form a Board of State Canvassers, and proceed to can- 
vass the returns of said election and determine and declare wJio shall 
have been elected to any such office or as such member, as shown by 
suck returns. 

The Governor's certificate is prima facie evidence 
that the State canvassers performed their duty. 
Indeed, it is conceded by the objectors that they made 
a canvass and certified or declared the same. It is 
not the failure of the board to act, or to certify and 



OPINIONS IN ELECTORAL COMMISSION. 175 

declare the result of their action, but an illegal can- 
vass, of which they complain. To review that can- 
vass, in my judgment, the Houses of Congress have 
no jurisdiction or power. 

The question then arises, whether the subsequent 
action of the courts or legislature of Florida can 
change the result arrived at and declared by the Board 
of State Canvassers, and consummated by the vote of 
the electors, and the complete execution of their func- 
tions ? 

If the action of the State Board of Canvassers 
were a mere statement of a fact, like the certificate of 
the Governor, and did not involve the exercise of 
decision and judgment, perhaps it might be contro- 
verted by evidence of an equally high character. Like 
the return to a habeas corpus, which could not in for- 
mer times be contradicted by parol proof, but might 
be contradicted by a verdict or judgment in an action 
for a false return. 

Looking at the subject in this point of view, I was, 
at one time, inclined to think that the proceedings on 
quo warranto in the Circuit Court of Florida, if still 
in force and effect, might be sufficient to contradict the 
finding and determination of the board of canvassers — 
supposing that the court had jurisdiction of the case. 
But the action of the board involved more than a mere 
statement of fact. It was a determination, a decision 
quasi judicial. The powers of the board as defined 
by the statute which created it are expressed in the 
following terms : " They shall proceed to canvass the 
returns of said election and determine and declare who 
shall have been elected to any office"; and " if any such 
returns shall be shown or shall appear to be so irregu- 



176 MISCELLANEOUS WRITINGS. 

lar, false, or fraudulent that the board shall be unable 
to determine the true vote for any such officer or mem- 
ber, they shall so certify, and shall not include such 
return in their determination and declaration." This 
clearly requires quasi judicial action. To controvert 
the finding of the board, therefore, would not be to 
correct a mere statement of fact, but to reverse the 
decision and determination of a tribunal. The judg- 
ment on the quo warranto was an attempted reversal 
of this decision, and the rendering of another decision.^ 
If the court had had jurisdiction of the subject-matter, 
and had rendered its decision before the votes of the 
electors were cast, its judgment, instead of that of the 
returning board, -would have been the final declaration 
of the result of the election. But its decision being 
rendered after the votes were given, it cannot have 
the operation to change or affect the vote, whatever 
effect it might have in a future judicial proceeding in 
relation to the Presidential election. The official acts 
of officers de facto until they are ousted by judicial 
process or otherwise are valid and binding. 

But it is a grave question w^hether any courts can 
thus interfere with the course of the election for Presi- 
dent and Vice-President. The remarks of Mr. Justice 
Miller on this subject are of great force and w^eight. 

The State may, undoubtedly, provide by law for 
reviewing the action of the board of canvassers, at 
any time before the electors have executed their func- 
tions. It may provide any safeguard it pleases to 
prevent or counteract fraud, mistake, or illegality on 
the part of the canvassers. The legislature may pass 
a law requiring the attendance of the Supreme Court, 
or any other tribunal, to supervise the action of the 



OPINIONS IN ELECTORAL COMMISSION. 177 

board, and to reverse it if wrong. But no such pro- 
vision being made, the final action of the board must 
be accepted as the action of the State. No tampering 
with the result can be admitted after the day fixed bj 
Congress for casting the electoral votes, and after it 
has becoine manifest where the pinch of the contest for 
the Presidency lies, and how it may be manipulated. 

I am entirely clear that the judicial proceedings in 
this case were destitute of validity to affect the votes 
given by the electors. Declared by the board of can- 
vassers to have been elected, they were entitled, by 
virtue of that declaration, to act as such against all 
the world until ousted of their office. The}^ proceeded 
to perform the entire functions of that office. They 
deposited their votes in a regular manner, and on the 
proper and only day designated for that purpose, and 
their act could not be annulled by the subsecjuent pro- 
ceedings on the quo warranto, however valid these 
might be for other purposes. AVlien their votes were 
given, they were the legally constituted electors for 
the State of Florida. 

The Supreme Court of Florida said, in the Drew 
case, it is true, that the board of canvassers exceeded 
their jurisdiction, and that their acts were absolutely 
void. In this assertion I do not concur ; and it was 
not necessary to the judgment, -which merely set aside 
the finding of the board and directed a new canvass. 
Under the Florida statute the board had power to 
cast out returns. They did so. The court thought 
they ought to have cast out on a different principle 
from that which they adopted. This was at most 
error, not want or excess of jurisdiction. They cer- 
tainly acted within the scope of their power, though 



178 MISCELLANEOUS WRITINGS. 

they may have acted erroneously. This is the most 
that can be said in any event ; and of this the Houses 
of Congress cannot sit in judgment as a court of 
appeal. 

The question is asked, whether for no cause what- 
ever the declaration and certificate of the board of 
canvassers can be disregarded — as, if they should certify 
an election w^hen no election had been held, and other 
extreme cases of that sort ? I do not say that a clear 
and evident mistake of fact inadvertently made, and 
admitted to have been made, b\^ the canvassers them- 
selves, or that such a gross fraud and violation of duty 
as that supposed, might not be corrected, or that it 
might not affect the validity of the vote. On that 
subject, as it is not necessary in this case, I express no 
opinion. Such extreme cases, w^hen they occur, gener- 
ally suggest some special rule for themselves without 
unsettling those general rules and principles which are 
the only safe guides in ordinary cases. The difficulty 
is, that the two Houses are not made the judges of 
the election and return of Presidential electors. 

I think no importance is to be attached to the acts 
performed by the board of canvassers after the sixth 
day of December ; nor to the acts of the Florida legis- 
lature in reference to the canvass. In my judgment 
they are all unconstitutional and void. To allow a 
State legislature in any way to change the appoint- 
ment of electors after they have been elected and 
given their votes, would be extremely dangerous. It 
would, in effect, make the legislature for the time being 
the electors, and w^ould subvert the design of the Con- 
stitution in requiring all the electoral votes to be 
iriven on the same dav. 



OPINIONS IN ELECTORAL COMMISSION, 179 

Mj conclusion is that the validit}^ of the first cer- 
tificate cannot be controverted by evidence of the 
proceedings had in the courts of Florida, by quo war- 
ranto ; and that said evidence should not be received. 

It is further objected that Humphrej^s, one of the 
Hayes electors, held an ofiice of trust and profit under 
the Government of the United States at the time of 
the general election, and at the time of giving his 
vote. I think the evidence of this fact should be 
admitted. Such an office is a Constitutional disquali- 
fication. I do not think it requires legislation to 
make it binding. What may be the effect of the evi- 
dence when produced, I am not prepared to say. I 
should like to hear further argument on the subject 
before deciding the question. 

[It being shov^rn that Humphreys resigned his office 
before the election, the question of ineligibility became 
unimportant. Justice Bradley held, however, that the 
Constitutional prohibition, that no member of Con- 
gress, or officer of the Government, should be appointed 
an elector is only a form of declaring a disqualification 
for the electoral office, and does not have the effect of 
annulling the vote given by one who, though disquali- 
fied, is regularly elected, and acts as an elector ; likening 
it to the case of other officers de facto. '\ 



180 MISCELLANEOUS WRITINGS. 

II.— THE LOUISIANA CASE. 

The objections to the votes of the electors certified 
bv Kellogg, as Governor of Louisiana, being condensed, 
are in substance as follows : 

First. — That the government of Louisiana is not 
republican in form. 

Second. — That Kellogg was not Governor. 

Third. — That at the time of the election, in Novem- 
ber last, there was no law of the State directing the 
appointment of electors. 

Fourth. — That so much of the election law which 
was in force as relates to the returning board was 
unconstitutional and void. 

Fifth. — That the board was not constituted 
according to the law ; having only four members of one 
political party, when there should have been five 
members of different political parties. 

Sixthly. — That they acted fraudulently and without 
jurisdiction in casting out and rejecting the returns or 
statements of various commissioners of election, with- 
out having before them any statement or affidavit of 
violence or intimidation as required by law to give 
them jurisdiction to reject returns ; that they neglected 
to canvass the returns of the commissioners and can- 
vassed those of the supervisors of registration — that 
is, the parish abstracts instead of the precinct returns ; 
that they did not canvass all of these (which would 
have elected the Tilden electors), but falsely and fraud- 
ulently counted in the Hayes electors, knowing the 
count to be false ; and that they offered to give the 
votes the other -way for a bribe ; and that the certifi- 
cate given by Kellogg to the Ha^^es electors was the 
result of a conspiracy between Kellogg and the return- 



OPINIONS IN ELECTORAL COMMISSION. 181 

ing board and others to defraud their opponents of 
their election and the State of her right to vote ; and 
that the Hayes electors were not elected, but their 
opponents were. 

Seventhly.— That two of the electors certified by 
Kellogg were ineligible at the time of the election by 
holding office under the Government of the United 
States ; and that others were ineligible by holding 
State offices ; and that Kellogg could not legally certify 
himself as an elector. 

February 16, 1877. 
Justice Bradley : — 

The first two objections, that the State is without a 
republican form of government, and that Kellogg was 
not Governor, are not seriously insisted upon. 

The question whether the State had any law 
directing the appointment of electors of President and 
Vice-President, and regulating their proceedings, 
depends on whether the Presidential electoral law of 
1868 was orv,^as not repealed by the general election 
law of 1872, which is admitted to have been in force 
at the time of the last election. 

The repealing clause relied on is in the last section 
of the act, and is in these words : " That this act shall 
take effect from and after its passage, and that all 
others on the subject oi election laws be and the same 
are hereby repealed." The question is, whether the 
act relating to Presidential electors is an act " on the 
subject of election laws^^ within the meaning of this 
repealing clause. I am entirel}' satisfied that it is not, 
and that no part of it is repealed by the act of 1872, 
except one section -v\diich relates to the mode of 
returning and ascertaining the votes for electors. My 
reasons are these : 



182 MISCELLANEOUS WRITINGS. 

In the session of 1868, an act was passed,, 
approved October 19, 1868, which professed to be a 
general election law, regulating the mode of holding 
and ascertaining the result of all elections in the State, 
making provision for preserving order thereat, and for 
executing generally the one hundred and third article 
of the Constitution, which declares that " the privilege 
of free suffrage shall be supported by laws regulating 
elections and prohibiting under adequate penalties all 
undue influence thereon from power, bribery, tumult, 
or other improper practice." A distinct act was 
passed at the same session, approved October 30, 1868, 
which is the act relating to Presidential electors, before 
referred to. It certainly was not supposed that one 
of these acts conflicted with the other. The one regu- 
lated the manner of holding and ascertaining the 
results of elections generally ; the other prescribed the 
mode of appointing the Presidential electors to which 
the State was entitled, namely, that they should be 
elected on the day fixed by Congress, two for the State 
at large, and one in each Congressional district ; pre- 
scribed their qualifications, and the time and place of 
their meeting to perform their duties ; authorized 
them when met to fill any vacancies caused by the 
failure of any members to attend ; and regulated their 
pay. One section, it is true, directed the manner in 
which the returns should be canvassed, namely, by 
the Governor in presence of the Secretary of State, 
the Attorney General, and a district judge ; and the 
first section directed that the election for electors 
should be held on the day appointed by the act of 
Congress, and that it should be held and conducted in 
the manner and form provided by law for general 
State elections. 



OPINIONS IN ELECTORAL COMMISSION. 183 

At the same session (1868) provision was made 
for revising all the general statutes of the State under 
the direction of a committee appointed for that pur- 
pose. This committee appointed Mr. John Ray to 
make the revision. It was duly reported, and adopted 
during the session of 1870. It contained, under the 
title of "Elections," the act of October 19, 1868; 
and under the title " Presidential Electors," the act of 
October 30, 1868 ; showing conclusively that at that 
time the tvi^o acts were not deemed incompatible with 
each other. 

A new election law^ was passed at the same session 
as a substitute for that of October 19, 1868, repeal- 
ing all conflicting laws ; but it was not inserted in the 
revised statutes, because they did not contain any of 
the laws of that session. A law was passed, however, 
authorizing the reviser (Mr. Ray) to publish a new 
edition, under the name of a Digest, which should 
embrace the acts of 1870. This was done, and the 
ne^w election law w^as inserted under the title, "Elec- 
tions," in place of the old law. The act relating to 
Presidential electors was untouched, except to insert 
in it the new method of making the returns of the 
elections by the returning board, which was the only 
part of the new law which conflicted with it. It is 
apparent, therefore, that the election law of 1870 was 
not deemed repugnant to the law relating to " Presi- 
dential Electors," except in the one particular men- 
tioned. 

Now, the act of 1872, which it is alleged does 
repeal the law relating to Presidential electors, is sim- 
ply a substitute for the general election law of 1870, 
going over and occupying exactly the same ground, 



184 MISCELLANEOUS WRITINGS. 

and no more, and making ver^^ slight alterations. 
The principle of these is the reconstruction of the 
returning board. With this exception it does not in 
the least conflict, any more than did the act of 1870, 
with the provisions of the law relating to " Presidential 
electors." And as the repealing clause therein (before 
referred to) is expressly confined to " acts on the sub- 
ject of election laws,^' it seems to me most manifest 
that the intent was to repeal the election law only, 
and not that relating to " Presidential electors." This 
view is corroborated by the sixty-ninth section, Vvliich 
has this expression : " The violation of any provision 
of the act, or section of the act, repealed by this act, 
shall not be considered," etc. Repealing clauses'should 
not be extended so as to repeal laws not in conflict 
v^ith the norw law, unless absolutely necessary to give 
effect to the words. And when we consider the con- 
sequences which a repeal of the law relating to Presi- 
dential electors would have, in depriving the State of 
its power to have vacancies in its electoral college 
filled, in introducing confusion and uncertainty as to 
the districts they should be chosen from, and by leav- 
ing no directions as to the time and place of their 
meeting, it seems clear that it could never have been 
in the mind of the legislature to repeal that law. 

There is a section in the act of 1872 relating to 
vacancies -which it has been suggested is repugnant to 
the authority of the electoral college to fill vacancies 
in that body. It is section 24, which enacts, "that 
all elections to be held in this State to fill any vacan- 
cies shall be conducted and managed and returns 
■:hereof shall be made, in the same manner as is pro- 
vided for general elections." But this is explained by 



OPINIONS IN ELECTORAL COMMISSION, 185 

the fact that both the Constitution and the election 
law itself direct vacancies in certain offices named 
(including that of members of the legislature) to be 
filled by a new election. The twenty-fourth section 
means only, that where elections are to be held to fill 
vacancies, they shall be held in the usual manner. It 
cannot mean that all vacancies shall be filled by another 
election ; because the Constitution expressly gives to 
the Governor the power to fill vacancies in certain 
cases. 

I am clearly of opinion, therefore, that the law 
relating to Presidential electors has not been repealed, 
except as to the mode of canvassing the returns ; and 
that that is to be performed by the returning board 
created by the act of 1872, in lieu of the Lynch 
returning board created by the act of 1870, and in 
lieu of the method originally prescribed in the law 
relating to Presidential electors. 

This disposes of the objection that the electoral 
college had no power to fill vacancies in its own body, 
since the electoral law has a section which expressly 
authorizes the college to fill any vacancy that may 
occur by the non-attendance of any of the electors 
by four o'clock in the afternoon of the day for giving 
their votes. 

But it is insisted that that part of the election 
law of 1872 which re-establishes the returning board, 
and gives it its powers, is unconstitutional. The act 
declares " that five persons, to be elected by the Senate 
from all political parties, shall be the returning officers 
for all elections. In case of any vacancy by death, 
resignation or otherwise, by either of the board, then 
the vacancy shall be filled by the residue of the board 
of returning officers. '* 



186 MISCELLANEOUS WRITINGS. 

The powers and duties of the board are, to meet in. 
New Orleans within ten days after the election, canvass 
and compile the statement of votes made by the com- 
missioners of election, and make returns of the election 
to the Secretary of State, and publish a copy in the 
public journals, declaring the names of all persons and 
officers voted for, the number of votes for each person^ 
and the names of the persons who have been duly and 
lawfully elected. It is declared that the returns thus 
made and promulgated shall be prima facie evidence 
in all courts of justice and before all civil officers, until 
set aside after contest according to law, of the right 
of any person declared elected. On receiving notice 
from any supervisor of election supported by affidavits, 
and being convinced by examination and testimony, 
that by reason of riot, tumult, acts of violence, intim- 
idation, armed disturbance, bribery, or corrupt influ- 
ences, the purity and freedom of election at any voting 
place were materially interfered with, or a sufficient 
number of qualified voters to change the result were 
prevented from registering and voting, it is made the 
duty of the board to exclude from their returns the 
votes given at such voting place. 

Why this law is unconstitutional, I cannot perceive. 
The powers given may be abused, it is true ; but that 
is the case w^ith all powers. The constitutionality of 
the board has been considered by the Supreme Court 
of Louisiana, and has been fully sustained. It is said 
that the term of office is indefinite, and might continue 
for life. But where no period is fixed for the tenureof 
an office, it is held at the will of the appointing power, 
w^hich may, at any time, make a new appointment. 
So that no evil consequences can ensue from this cause. 



OPINIONS IN ELECTORAL COMMISSION. 187 

If the members of the board were appointed for a term, 
the Senate could re-appoint them. Allowing them to 
remain, ^dien po-wer exists to remove them at will, is 
substantially the same thing. 

The objection that there were only four members 
constituting the board at the canvass in December last 
is met by the general rule of the law in regard to 
public bodies, that the happening of a vacancy does 
not destroy the body if a quorum still remains. The 
Supreme Court consists of nine Justices ; but the 
court may be legally held though there are three 
vacancies, only six being required for a quorum. A 
vacancy in a branch of the legislature, in the board of 
supervisors of a county, in the commissioners or select- 
men of a town, in the trustees of a school district, 
does not destroy the body, nor vitiate its action, unless 
there be an express law to make it do so. 

But it is said that the power given to the board 
to fill vacancies in its own body is mandatory. It is 
in exactly the same terms as those contained in the 
election law of 1870 on the same subject. In several 
cases, arising under that act, the Supreme Court of 
Louisiana decided that this language was not com- 
pulsory, or, at least did not affect the legal constitu- 
tion of the board if not complied Avith ; but that the 
board was a legal board, though only four members 
remained in it. Had the board never been filled at all 
it might be urged with more plausibility that it was 
never legallv constituted. If a court be created to 
consist of five judges, although, if once legally organ- 
ized, a single judge might hold the court in the absence 
of the others ; yet if only one judge were ever 
appointed it might very properly be said that no legal 



188 MISCELLANEOUS WRITINGS. 

organization had ever taken place. In this case the 
vacancy in the board occurred after it had been duly- 
constituted by the appointment of the full number of 
members. Afterwards the vacancy occurred. And if 
it be the correct view, as was decided by the Supreme 
Court of Louisiana in regard to the Lynch board, 
that the power given to the remaining members to fill 
the vacancy is not mandatory, a neglect on their part 
to fill it does not, it seems to me, destroy the existence 
of the board, oi deprive it of power to act. If it be 
true, as alleged, that members of only one political 
party remained on it, it may have been an impropriety 
in proceeding without filling the vacancy, and the 
motives of the members may have been bad motives, 
corrupt, fraudulent, w^hat not ; but w^ith improprieties 
and with the motives of the members we have noth- 
ing to do. We are not the judges of their motives. 
The question ^vith which we have to do is a question 
of power, of legal authority in four members to act. 
And of this I have no doubt. The board was directed 
" to be elected by the Senate from all political parties," 
it is true. It does not appear that this was not done. 
Can it be contended that the resignation or death 
of one of the members, who happened to be alone in 
his party connections, deprives the remainder of the 
power to act ? I think not. If the four members 
remaining were all of different politics, the objection 
would lose all its force. So that it is resolved to this ; 
that the power to fill a vacancy is mandatory when 
any political party ceases to be represented by the 
death or resignation of a member ; and is not manda- 
tory in any other case. Suppose, instead of dying or 
resigning, the member changes his party afiiliations ; 



OPINIONS IN ELECTORAL COMMISSION. 189 

is there a vacancy then ? Can the other members 
oust him, or can he oust them ? The Senate, with 
whom resides the power of appointing a new board 
whenever it sees fit, might be in duty bound to act ; 
but the same cannot be said of the board itself If 
this were not Louisiana, but some State in which no 
charges of fraud and disorder were made, the objec- 
tion would hardly be thought of as having any legal 
validity. 

The next question relates to the alleged illegality 
and fraud in the proceedings of the returning board. 
Can the two Houses of Congress go behind their 
returns and certificate and examine into their conduct ? 
I have already discussed this subject to some extent in 
the Florida case, I shall now only state briefly the 
conclusions to which I have come in this case. 

First. I consider the Governor's certificate of the 
result of the canvass as prima facie evidence of the 
fact ; but subject to examination and contradiction. 
This point has already been considered in the Florida 
case. 

Secondly. The finding and return of the State 
canvassers of the election are, in their nature, of 
greater force and effect than the Governor's certificate, 
being that on which his certificate is founded, and 
being the final result of the political machinery estab- 
lished by the State to ascertain and determine the very 
fact in question. ''Each State shall appoint,''' is the 
language of the Constitution. Of course the two 
Houses must be satisfied that the State has appointed, 
and that the votes presented were given by its 
appointees. The primary proof of this, as prescribed 
by the laws of the United States, is the certificate of 
the Governor. But, as before stated, I do not deem 



190 MISCELLANEOUS WRITINGS. 

that conclusive. It may be shown to be false or 
erroneous in fact, or based upon the canvass and 
return of a board or tribunal that had no authority 
to act. This was conceded in the proceeding which 
took place with regard to the votes of Louisiana in 
1873. 

Was the returning board of Louisiana a tribunal, 
or body, constituted by the laws of the State, with 
power to ascertain and declare the result of the elec- 
tion, and did that board, in the exercise of the juris- 
diction conferred upon it, ascertain and declare that 
result ? This, it seems to me, is the point to be 
ascertained. 

This involves an examination of the law^s of the 
State to ascertain what that tribunal is and what 
general powers it is invested with, not for the purpose 
of seeing whether all the proceedings of the board, or 
of the election officers whose action preceded theirs, 
were in strict compliance with the law, but for the 
purpose of seeing whether the result comes from the 
authorities provided b}^ the State, acting substantially 
within the scope of their appointment. This is neces- 
sary to be done in order to see whether (whatever 
irregularities may have occurred) it was the State which 
made the appointment, or some usurping body not 
authorized by the State at all. 

The examination to be made is somew^hat analo- 
gous to that made into the jurisdiction of a court 
when its judgment is collaterally assailed. If the 
board declared the result of the election, and, in so 
doing acted within the general scope of its powers, it 
seems to me that the inquiry should there end. The 
Constitutional power of the two Houses of Congress 
does not go further. 



OPINIONS IN ELECTORAL COMMISSION. 191 

On the question of jurisdiction, I think it compe- 
tent for the Houses to take notice of the fact (if such 
was the fact) that the returning board had no returns 
before it at all, and, in effect (to speak as we do of 
judicial proceedings), without having a case before it to 
act on ; or of the fact (if such was the fact) that the 
board which pretended to act was not a legal board. 
This view was taken by both Houses, if I understand 
their action aright, in the count of 1873 in rejecting 
the electoral votes from Louisiana on that occasion. 
(Document on Electoral Counts, 407). Anything 
which shows a clear want of jurisdiction in the return- 
ing board divests its acts of authority, and makes it 
cease to be the representative of the will of the State. 
But it must appear that there was a clear and most 
manifest want of authority ; for, otherwise the State 
might be deprived of its franchise by mere inadvert- 
ence of its agents, or an honest mistake made by 
them as to the law. 

In the case before us the board had ample powers, 
as w^e have seen. These powers have frequently been 
sustained by the Supreme Court of the State. The 
law of Louisiana not only gives the board power to 
canvass the returns, but to reject returns whenever in 
their opinion, upon due examination had, they are 
satisfied that the vote was affected by violence and 
intimidation. They did no more in this case, suppos- 
ing them to have done all that is alleged. It is said, 
that they proceeded without jurisdiction, because they 
did not canvass the statements of the commissioners 
of election, but only the abstracts of the parish super- 
visors of registration. It is not denied that they had 
both and all of these statements before them. If they 



192 MISCELLANEOUS WRITINGS. 

acted wrongfully in relying on the abstracts and not 
examining the original statements, it may have been 
misconduct on their part, but it cannot be said that 
they w^ere acting beyond the scope of their jurisdiction. 
If, in a single case, and without coming to an erron- 
eous result, they took the abstracts instead of the 
original returns, it would be just as fatal as a matter 
of jurisdiction (and no more so), as if they relied on 
the abstracts in all cases. It would only be error or 
misconduct, and not want of jurisdiction. And the 
Houses of Congress, as before said, are not a court of 
errors and appeals, for the purpose of examining regu- 
larity of proceedings. 

It is also said, that they acted without jurisdiction 
in rejecting returns without having before them certifi- 
cates of violence or intimidation. It is admitted that 
they took a large quantity of evidence themselves on 
the subject ; but it is contended that they had no 
jurisdiction to enter upon the inquiry without a 
supervisor's certificate first had. Is this certain ? 
The one hundred and third article of the Constitution 
made it the duty of the legislature to pass laws regu- 
lating elections, to support the privilege of free suffrage, 
and to prohibit undue influence thereon from power, 
bribery, tumults, or other improper influences. The 
election law w^as passed to carry out this article. As 
one means of carrying it out in spirit, the returning 
board v^ere prohibited from counting a return if it 
was accompanied by a certificate of violence, until 
they had investigated the matter by examination and 
proof. Receiving such a certificate they could not 
count a return if they w^anted to. Now, is it certain, 
that under such a law, if the board had knowledge 



OPINIONS IN ELECTORAL COMMISSION. 193 

from other sources than a certificate, that violence and 
intimidation had been exercised and had produced the 
result, thej could not inquire into it ? And more, is 
their whole canvass to be set aside because they made 
an investigation under such circumstances ? There is 
no other tribunal in Louisiana for making it. The 
Supreme Court has decided that the courts cannot go 
behind these returns. In my judgment we have no more 
authorit}^ to reject their canvass for this cause than 
for that of not using the onginal statements. It is as 
if a court having jurisdiction of a cause, used a piece 
of evidence on the trial which it had no jurisdiction 
to take. It would be mere irregiilarity at most, and 
would not render its judgment void in any collateral 
proceeding. 

I cannot bring my mind to believe that fraud and 
misconduct on the part of the State authorities, con- 
stituted for the very purpose of declaring the final 
will of the State, is a subject over which the two 
Houses of Congress have jurisdiction to institute an 
examination. The question is not whether frauds 
ought to be tolerated, or w^hether they ought not to 
be circumvented ; but whether the Houses of Congress, 
in exercising their power of counting the electoral votes, 
are entrusted by the Constitution with authority to 
investigate them. If in any case it should clearly and 
manifestly appear, in an unmistakable manner, that 
a direct fraud had been committed by a returning 
board in returning the electors they did, and if it did 
not require an investigation on the part of the two 
Houses to ascertain by the taking of evidence the 
truth of the case, I have no doubt that the Houses 
might rightfully reject the vote — as not being the vote 



194 MISCELLANEOUS WRITINGS. 

of the State, But where no such manifest fraud 
appears, and fraud is only charged, how are the t-wo 
Houses to enter upon a career of investigation ? If 
the field of inquiry were once opened, where is its 
boundary ? Evidently no such proceeding was in the 
minds of the framers of the Constitution. The short 
and explicit directions there given, that the votes 
should first be produced before the Houses -when met 
for that purpose, and that "the votes shall then be 
counted," is at variance wath any such idea. An 
investigation beforehand is not authorized and was 
not contemplated, and would be repugnant to the 
limited and special power given. What jurisdiction 
have the Houses on the subject until they have met 
under the Constitution, except to provide by law for 
facilitating the performance of their duties ? An inves- 
tigation afterwards, such as the question raised might 
and frequently would lead to, would be utterly incom- 
patible with the performance of the duty imposed. 

At all events, on one or two points I am perfectly 
clear. First, that the two Houses do not constitute 
a canvassing board for the purpose of investigating 
and deciding on the results of the election for electors 
in a State. The proposed act of 1800 carefully 
excluded any inquiry into the number of votes on 
which any elector was elected ; and I think it cannot 
well be pretended that the Houses have power to go 
further into the inquiry than was proposed by that 
bill. Secondl}', that the two Houses are not a tribunal, 
or court for trying the validity of the election returns 
and sitting in judgment on the legality of the proceed- 
ings in the course of the election. The two Houses, 
with only their Constitutional jurisdiction, are neither 



OPINIONS IN ELECTORAL COMMISSION. 195 

of these things ; though as to the election, quaHfica- 
tions, and returns of their own members, thej are 
certainly the latter, having the right to judge and 
decide. 

I have thus far spoken of the power of the two 
Houses of Congress as derived from the Constitution. 
Whether the legislative power of the Government 
might not, by law, make provision for an investigation 
into frauds and illegalities, I do not undertake to 
decide. It cannot be done, in m\^ judgment, by an^^ 
agency of the Federal Government without legislative 
regulation. The necessity of an orderly mode of tak- 
ing evidence and giving opportunity to cross-examine 
witnesses, w^ould require the interposition of law. 
The ordinary power of the two Houses as legislative 
iDodies, by which they investigate facts through the 
agency of committees, is illy adapted to such an 
inquiry. 

It seems to me, however, the better conclusion, 
that the jurisdiction of the whole matter belongs 
exclusively to the States. Let them take care to pro- 
protect themselves from the perpetration of frauds. 
They need no guardians. Thc}^ are able, and better 
able than Congress, to create ever}'- kind of political 
machinery which human prudence can contrive, for 
circumventing fraud, and preserving their true voice 
and vote in the Presidential election. 

In my judgment, the evidence proposed cannot be 
received. 

Then, as to the alleged ineligibility of the candidates. 
First, their alleged ineligibility under the laws of the 
State, I think we have nothing to do with. It has 
been imposed for local reasons of State policy, but if 



196 MISCELLANEOUS WRITINGS, 

the State sees fit to waive its own regulations on this 
subject it is her own concern. If the State declares that 
no person shall hold two offices, or that all officers 
shall possess an estate of the value of a thousand dol- 
lars, or imposes any other qualification, or disqualifica- 
tion, it is for the State to execute its owtq laws in this 
behalf. At all events, if persons are appointed electors 
without having the qualifications, or having the dis- 
qualifications, and they execute the function of casting 
their votes, their acts cannot be revised here. 

Two of the electors, however, Levisee and Brewster, 
are alleged to have held offices of trust and profit 
under the United States, when the election was held 
on the 7th of November. It is not alleged that they 
did so on the 6th of December, v^hen the}^ gave their 
votes. Being absent when the electoral college met, 
their places were declared vacant, and the college itself 
proceeded to re-appoint them under the law, and sent 
for them. They then appeared and took their seats. So 
that, in point of fact, the objection does not meet the 
case, unless their being federal office-holders at the 
time of the election affects it. 

Though not necessary to the decision of this case, 
I have re-examined the question of Constitutional 
ineligibility since the Florida case was disposed of, 
and must say that I am not entirely satisfied with the 
conclusion to which I then came, namely, that if a dis- 
qualified elector casts his vote when disqualified, the 
objection cannot be taken. I still think that this dis- 
qualification at the time of his election is not material, 
if such disqualification ceases before he acts as an 
elector. But, as at present advised, I am inclined to 
the opinion that if constitutionally disqualified when he 
casts his vote, such vote ought not to be counted. 



OPINIONS IN ELECTORAL COMMISSION. 197 

I still think, as I thought in discussing the Florida 
case, that the form of the Constitutional prohibition 
is not material ; that it is all one, whether the prohibi- 
tion is that a federal officer shall not he an elector, or, 
that he shall not be appointed an elector. The spirit 
and object of the prohibition is, to make office-holding 
under the Federal Government a disqualification. 
That is all. And this is the more apparent when w^e 
recollect the reasons for it. When the Constitution 
was framed, the great object in creating the office of 
electors to elect the President and Vice-President, w^as 
to remove this great duty as far as possible from the 
influence of popular passion and prejudice, and to 
place it in the hands of men of wisdom and discretion, 
having a knowledge of public affairs and public men. 
The idea w^as that they were to act with freedom and 
independence. The jealousy which w^as manifested in 
the convention, against the apprehended influence and 
power of the general Government, and especially of 
the legislative branch, induced the prohibition in ques- 
tion. It was feared that the members of the Houses 
of Congress and persons holding office under the Gov- 
ernment would be peculiarly subject to these influences 
in exercising the powder of voting for Chief Magistrate. 
It v^as not in the process of appointment that this influ- 
ence was dreaded ; but in the effect that it would have 
on the elector himself in giving his vote. 

It seems to me, therefore, that if a person appointed 
an elector has no official connection with the Federal 
Government when he gives his vote, such vote cannot 
be justly excepted to. And that substantial effect is 
given to the Constitutional disqualification if the 
electoral vote given by such officer is rejected. And 
my present impression is that it should be rejected. 



198 MISCELLANEOUS WRITINGS. 

Circumstances, it is true, have greatl}' changed 
since the Constitution was adopted. Instead of elect- 
ors being, as it was supposed they would be, invested 
with power to act on the dictates of their own judg- 
ment and discretion in choosing a President, they have 
come to be mere puppets, elected to express the pre- 
ordained vnll of the political party that elects them. 
The matter of ineligibility has come to be really a 
matter of no importance, except as it still stands in 
the Constitution, and is to be inter[3reted as it was 
understood when the Constitution was adopted. 
Hence, we must ascertain, if we can, what was its 
original design and meaning, without attempting to 
stretch or enlarge its force. 

[It may be proper that I should here add, that I con- 
cede that there is great force in what is urged by other 
members of the Commission, respecting the difficulty 
which still remains, of the two Houses, when assem- 
bled to count the votes, undertaking an investigation 
of facts to determine a Cjuestion of ineligibility, which 
might be extended in such a manner as materially to 
interfere with the main duty for which they assemble. 
This was probably seen when the law of 1800 was 
proposed for the purpose of having such matters 
determined by a grand committee preparatory to the 
meeting of the two Houses in joint convention. The 
passage of some law regulating the matter is on all 
accounts desirable.] 



OPINIONS IN ELECTORAL COMMISSION. 199 

III.— THE OREGON CASE. 

The la.ws of Oregon do not provide for a Board of 

State Canvassers, btit direct as follows : 

It shall be the duty of the Secretary of State, in presence of the 
Governor, to proceed within thirty days after the election, and sooner, 
if the returns be all received, to canvass the votes given for Secretary 
and Treasurer of State, State printer, Justices of the Supreme Court, 
members of Congress and district attorneys. 

And then, with regard to State officers, directs : 
" The Governor shall grant a certificate of election to 
the person having the highest number of votes, and 
shall also issue a proclamation declaring the election 
of such person." 

But with regard to Presidential electors, it directs : 
" The votes for the electors shall be given, received, 
returned, and canvassed as the same are given, 
returned, and canvassed for members of Congress. The 
Secretary of State shall prepare two lists of the names 
of the electors elected, and affix the seal of the State 
to the same. Such lists shall be signed by the Governor 
and Secretary', and by the latter delivered to the college 
of electors at the hour of their meeting on such first 
Wednesday of December." 

When the electors are met on the day for casting 
their votes, the law^ directs : "If there shall be any 
vacancy in the ofiice of an elector, occasioned by 
death, refusal to act, neglect to attend, or otherwise, 
the electors present shall immediately proceed to fill, 
by viva voce and plurality of votes, such vacanc\' in 
the electoral college." 

Watts, one of the electors having the highest num- 
ber of votes, was a postmaster at the time of the 
election, Novemljcr 7, 1876 ; but resigned that office 
durins: the month. 



200 



MISCELLANEOUS WRITINGS. 



On the 4th of December, the Secretary of State, in 
presence of the Governor, canvassed the votes for 
Presidential electors, made a statement of the result, 
authenticated it under the seal of the State, and filed 
it in his office. The following is a cop\^ of this docu- 
ment : 

Abstract of votes cast at the Presidential Election held ix the 
State op Oregon November 7, 187G, for Presidential Electors. 



Counties. 


"3 
O 


i 




s 


C 

u 
U 

< 




u 
O 


'0 
OS 


t 
O 

m 


Baker 


318 
615 
949 
432 
157 
571 
131 
1,002 
315 
5S5 
209 
949 
173 
1,323 
1,780 
2,124 
607 
119 
486 
366 
491 
693 
811 


319 

615 
950 
432 
156 
571 
131 
1,002 
314 
585 
209 
949 
173 
1,324 
1,782 
2,122 
608 
119 
486 
366 
491 
692 
810 


319 
615 
950 
432 
157 
571 
131 
1,003 
316 
586 
209 
949 
173 
1,323 
1,781 
2,122 
60S 
119 
486 
366 
493 
693 
812 


549 
567 
724 
3S6 
179 
512 
124 
847 
279 
827 
252 
946 
258 
1,404 
1,154 
1,525 
542 
76 
742 
525 
621 
423 
674 


550 
567 
724 
385 
179 
516 
124 

tu 

840 

252 

946 

258 

1,404 

1,154 

1,528 

542 

76 

742 

525 

621 

424 

674 


549 
567 
724 
386 
179 
515 
124 
847 
277 
840 
252 
946 
258 


1 

77 
17 


1 
17 








Clackamas 

Clatsop 


17 


Columbia 

Coos 


22 


22 


22 


Curry 


3 

43 
3 

5 

4- 

33 


3 

43 
3 
5 
4 

33 


3 
43 


Grant 


3 

5 

4 

33 




Josephine 


Lake 


Linn 


1.404 

1,155 

1,525 

542 

76 

742 

525 

619 

423 

674 


140 


141 
23 

2 
.55 

1 
42 
32 


140 


Marion 

Multnomah .. 
Polk 


24 
2 

54 
1 

42 

32 


22 

2 

54 


Tillamook 

Umatilla 


1 
42 
32 


Wasco 


Washington .. 








Yamhill 


6 


6 


Q 






Total 


15,206 


15,206 


15,214 


14,136 


14,157 


14 149 '^OQ 


510 


507 











Simpson, 1; Graj-, 1; Sauisbury, 1 ; IVlcDowell, 1. 

Salem, State of Oregon : 

I hereby certify that the foregoing tabulated statement is the 
result of the vote cast for Presidential electors at a. general election 
held in and for the State of Oregon on the 7th day of November, 
A. D. 1876, as opened and canvassed in the presence of his excellency, 
L. F. Grover, Governor of said State, according to law, on the 4th 
day of December, A. D. 1876, at 2 o'clock P. M. of that day, by the 
Secretary of State. 

[.seal.] S. F. CHADWICK, 

Secretary of State of Oregon. 



OPINIONS IN ELECTORAL COMMISSION. 201 

The statute of Oregon declares : "In all elections 
in this State the person having the highest number of 
votes for any office shall be deemed to have been 
elected." 

On the 6th of December, when the electors met to 
give their votes for President and Vice-President, 
Watts resigned as elector, and was re-appointed by 
Odell and Cartwright to fill the vacancy. The Governor 
refused them the usual certificate, but certified that 
Odell, Cartwright and Cronin received the highest 
number of votes cast for persons eligible under the 
Constitution of the United States, and declared them 
duly elected. As Odell and Cartwright refused to meet 
with Cronin, he assumed to fill two vacancies. This 
proceeding of the Governor and Cronin raised the prin- 
cipal question in the Oregon case. 

February 23, 1877. 
Justice Bradley : — 

This case differs from the two cases already heard 
in this : By the laws of both Florida and Louisiana, 
the final determination of the result of the election 
w^as to be made by a board of canvassers invested 
w^ith power to judge of the local returns and to reject 
them for certain causes assigned. In Oregon, no such 
board exists. The general canvass for the State is 
directed to be made by the Secretary of State in pres- 
ence of the Governor, from the abstracts sent to him 
by the County Clerks. This canvass having been 
made, the result is declared by the law. The canvass 
is the last act by which the election is decided and 
determined. This canvass was made in the present 
case on the 4th day of December (1876) ; the result 



202 MISCELLANEOUS WRITINGS. 

was recorded in a statement in ^vriting made by tlie 
Secretary and filed by him in his office. This state- 
ment or abstract thus became the record evidence of 
the canvass. It remains in the Secretary's ofiice to-day, 
as the final evidence and determination of the result. 

We have before us, under the great seal of the State, 
a copy of this statement, which shows the result to 
have been a clear plurality of over a thousand votes 
in favor of the three electors, Odell, Cartwright and 
Watts ; and there is added thereto a list of the votes. 

This document, after exhibiting a tabulated state- 
ment of the votes given for each candidate in each 
county of the State, footing up for Odell, 15,206 ; 
Watts, 15,206 ; Cartwright, 15,214 ; Klippel, 14,136 ; 
Cronin, 14,157 ; Laswell, 14,149, and a few scattering 
votes, was certified and authenticated at the end, as 
follows : 

Salem, State of Oregon : 

I hereby certify that the foregoing tabulated statement is the 
result of the vote cast for Presidential electors at a general election, 
held in and for the State of Oregon on the 7th day of November 
A. D. 1876, as opened and canvassed in the presence of his excellency, 
L. F. Gkover, Governor of said State, according to law, on the 4th 
day of December, A. D. 1876, at 2 o'clock P. M. of that day, by the 
Secretary of State. 

[SEAL.] S. F. CHADWICK, 

Secretary of State of Oregon, 

This document, w^ith this certificate and authenti- 
cation upon it, ^'as filed b}^ the Secretary in his ofiice 
on the 4th day of December. 

To the exemplified copy of it, ^diich was sent to 
the President of the Senate (and which v\re have before 
us), is added another document, entitled " List of 
votes cast at an election for electors of President and 



OPINIONS IN ELECTORAL COMMISSION. 203 

Vice-President of the United States in the State of 
Oregon, held on the 7th day of November, 1876," 
which contains the votes given for each candidate (the 
same as in the canvass) written out in -words at 
length, and certified by the Secretary of State, also 
under the great seal of the State, to be the entire vote 
cast for each and all persons for the office of electors 
as appears by the returns of said election on file in his 
office. 

Having made this canvass, recorded it, and filed 
it in his office, the Secretary of State was functus 
officio with regard to the duty of ascertaining the 
result of the election. He could not change it ; he could 
not tamper w^ith it in any way. By his act, and by 
this record of his act, the ascertainment of the election 
in Oregon was closed. Its laws give no revisorj^ 
power to an}^ other functionary ; and give none to the 
Secretary himself And this, as we have seen, was 
done and completed on the 4th day of December, 
at 2 o'clodv in the afternoon, in the presence of the 
Governor, according to the law of Oregon. 

Now, what is the decree of the law on this trans- 
action ? It is clear and unmistakable. " In all elec- 
tions in this State the person having the highest num- 
ber of votes for any office shall be deemed to be 
elected." It is not left for any functionary to say 
that any other person shall be deemed to be elected. 
No discretion, no power of revision is given to any 
one, except as the general law of the State has given 
to the judicial department power to investigate the 
right of persons elected to hold the offices to which 
they have been elected. 

Now, what is the next step to performed ? It is 
this : *' The Secretarj^ of State shall prepare two lists 



204 MISCELLANEOUS WRITINGS. 

of the names of the electors elected, and affix the seal 
of the State to the same. Such lists shall be signed 
hy the Governor and Secretary, and by the latter 
delivered to the college of electors at the hour of their 
meeting on such first Wednesday of December." This 
direction seems to be intended as a compliance with 
the act of Congress of 1792. It is true, that this act 
requires three lists instead of two to be delivered to 
the electors ; but the number required by the State 
law was probably an inadvertence. Be this, however, 
as it may ; w^hat names was the Secretary^ required by 
law to insert in his certificate ? 

He made out his certificate on the 6th day of 
December, two days after his canvass had been com- 
pleted, recorded, and deposited in the public archives. 
In making this certificate he \vas performing a mere 
ministerial dut3^ It was his clear duty to insert in 
his certificate the names of the persons \vhom the law 
declared to be elected. Doing otherwise was not only 
a clear violation of duty, but he made a statement 
untrue in fact ; and the Governor putting his name to 
the certificate, joined in that misrepresentation. It 
may not have been an intended misrepresentation, and 
the use of the word " eligible " may have been thought 
a sufficient qualification ; nevertheless it w^as a mis- 
representation in fact and in law, and it all appears 
from the record itself. It needs no extrinsic evidence. 

But it is said that the Governor has the power to 
disregard the canvass, and to reject an elector whom he 
is satisfied is ineligible. There is no law of Oregon 
which gives him this power. In my judgment, it was 
a clear act of usurpation. It was tampering with an 
election which the law had declared to be closed and 
ascertained. 



OPINIONS IN ELECTORAL COMMISSION. 205 

It is said, however, that he may refuse a commis- 
sion to an inehgible person elected to a State office. 
If so, it does not decide this case. And it seems to me 
that such an act, even with regard to State officers, 
would be an encroachment on the judicial power. A 
case is referred to as having been decided in Oregon, in 
which the appointment by the Governor to fill a 
vacancy in a State office caused by the incumbent 
being appointed to a United States office, -was sus- 
tained. But surely the judgment in that case must 
have been based on the fact that there was a vacancy 
and not on the fact that the Governor assumed to 
judge whether there was a vacancy or not. His exec- 
utive act, whether in determining his own action he 
had the right to decide the question of eligibility or 
not, was valid or not according as the very truth of 
the fact was. 

But in the case before us he had a mere ministerial 
act to perform. He had no discretionary power. 

If anyone could have taken notice of the question 
of supposed ineligibility it was the Secretary of State 
when making his canvass. Had he taken it upon 
himself to throw out the votes given for Watts, he 
w^ould have had a much more plausible ground of 
justification for his act than the Governor had, to 
whom no power is given on the subject. 

But it is said, no matter whether the Governor and 
Secretary acted right or w^rong ; they were the func- 
tionaries designated for giving final expression to the 
will of the State, and their certificate must be received 
as such, under the decision in the cases of Florida and 
Louisiana. To this view, however, there is a conclu- 
sive answer. As I said before, the certificate to be 



206 MISCELLANEOUS WRITINGS. 

given by the Secretary and Governor to these electors 
was not intended as any part of the machinery for 
ascertaining the result of the election ; but as a mere 
certificate of the fact of election, as a credential to be 
used by the electors in acting as such and transmit- 
ting their votes to the President of the Senate of 
the United States, as required by the act of Con- 
gress of 1792. As such it is prima facie evidence, 
it is true ; but no person has contended that it cannot 
be contradicted and shown to be untrue, especially by 
evidence of equal dignity. We did not so decide in 
the other cases. We held that the final decision of the 
canvass by the tribunal or authority constituted for 
that purpose could not be revoked by the two Houses 
of Congress, by going into evidence behind their action 
and return. 

The only remaining question is, w^hether there was 
a vacancy in the college at the time when Odell and 
Cartwright assumed to fill a vacancy on the 6th day 
of December, 1876. It seems to me, that there was, 
w^hether there w^as a failure to elect on account of the 
ineligibility of Watts, or on account of his resignation 
afterwards. 

It is agreed by a large majority of the Commission, 
that Cronin was not elected. Some of this majority 
take the ground that Watts was dul}- elected, what- 
ever effect his ineligibility, had it continued, might 
have had on his vote. Others of them take the ground 
that there was no election of a third elector. It seems 
to me that it makes no difference in this case which of 
these views is the correct one ; there v^as a clear 
vacancy in either case. 

The act of Congfress of 1S45 declares that " each 



OPINIONS IN ELECTORAL COMMISSION. 207 

State may by law provide for the filling of any vacan- 
cies which may occur in its college of electors when 
such college meets to give its electoral vote "; and also, 
** that whenever any State has held an election for the 
purpose of choosing electors, and has failed to make a 
choice on the day prescribed by law, the electors may 
be appointed on a subsequent day in such a manner as 
the legislature of such State luay direct." 

The first contingency would occur when some of 
the electors were elected and could meet and fill any 
vacancy in their number. The second contingency 
would occur when no electors were appointed, and, 
therefore, no meeting could be held. It is evident that 
these are two very different cases ; and that the one 
before us does not belong to the latter, but to the 
ormer. It is the difference between a college which is 
not full, and no college at all. In Oregon, according 
to the exigency supposed, the case belonged to that of 
a vacancy under the act of 1845, 

The act of Oregon in relation to vacancies in the 
electoral college was evidently passed in view of the 
act of Congress upon which it was based ; and its 
terms are so broad and comprehensive that I cannot 
doubt that it was intended to apply to every case of 
vacancy. The words are that " if there shall be any 
vacancy in the ofiice of an elector, occasioned by 
death, refusal to act, neglect to attend, or otherwise, 
the electors present shall immediately proceed to fill," 
etc. This clearly covers every supposable case, and 
must be intended to be as broad as the corresponding 
section of the act of Congress. It is more general in 
its terms than the act relating to vacancies in State 
offices, which specifies only certain classes of cases. 



208 MISCELLANEOUS WRITINGS. 

As the electors Odell and Cartwright filled the 
vacancy in a regular manner, I cannot avoid the con- 
clusion that they, together with AVatts, were the true 
electors for the State of Oregon on the 6th day of 
December, and that their votes ought to be counted. 

Their credentials are not signed by the Governor, 
it is true ; but that is not an essential thing ; and 
was not their fault. They have presented the records 
of the State found in its archives ; and these show 
that the act of the Governor was grossly wrong ; and 
they have also presented the certificate of the Secretary 
of State under the great seal of the State, conclusively 
showing their election. They have also shown by 
their own affidavit, that they applied to the Governor 
for his certificate and that he refused it. I think their 
credentials, under the circumstances, are sufficient. 

It is urged that the distinction made between this 
case, and that of Florida and Louisiana is technical 
and will not give public satisfaction. My belief is that 
when the public come to understand (as they will do 
in time) that the decision come to is founded on the 
Constitution and the laws, they will be better satisfied 
than if we should attempt to follow the clamor of the 
hour. The sober second thought of the people of this 
country is in general correct. But, whilst the public 
satisfaction is always desirable, it is a poor method of 
ascertaining the law and the truth, to be alert in 
ascertaining what are the supposed wishes of the pub- 
lic. And as to deciding the case on technicalities, I do 
not know that technicalities are invoked on the one 
side more than on the other. In drawing the true 
boundary line between conflicting jurisdictions and 
establishing certain rules for just decision in such cases 



OPINIONS IN ELECTORAL COMMISSION. 209 

as these, it is impossible to avoid a close and search- 
ing scrutiny of w^ritten constitutions and laws. The 
weight due to words and phrases has to be observed, 
as well as the general spirit and policy of public docu- 
ments. Careful and exact inquiry becomes a necessity. 
And in such a close political canvass as this, in which 
the decision of a Presidential election may depend not 
only on a single electoral, but a single individual 
vote, the greatest strain is brought to bear on every 
part of our Constitutional machiner)^, and it is impos- 
sible to avoid a close examination of every part. 
There is a natural fondness for sohang every doubt 
on some "broad and general view" of the subject 
in hand. " Broad and general views " when entirely 
sound, and clearly applicable, are undoubtedly to be 
preferred ; but it is extremely easy to adopt broad and 
general views that will, if adhered to, carry us into 
regions of error and absurdity. The only rule that is 
always and under all circumstances reliable is to ascer- 
tain, at whatever cost of care and pains, the true and 
exact commands of the Constitution and the laws, 
and implicitly to obey them. 



210 MISCELLANEOUS WRITINGS, 

IV.— SOUTH CAROLINA CASE. 

It is not pretended that the votes of the Tilden 
electors as presented in certificate No. 2, in this case, 
are legah The entire controversy arises upon the 
objections to certificate No. 1, containing the votes for 
Hayes and Wheeler. 

These objections are — 

First. — That the November election in South Caro- 
lina v^as void because the legislature of that State has 
never passed a registration law as required by the 
constitution of the State, Article VIII., Section 3, 
which is as follows : "It shall be the duty of the gen- 
eral assembly to provide from time to time for the 
registration of all electors." This constitution was 
passed in 1868, and from that time to this, elections 
have been held, and the various elective officers of the 
State, as well as the office of Representatives in Con- 
gress, have been filled without a registration law hav- 
ing been passed. If the eftect of the omission has 
been to render all these elections absolutely void, 
South Carolina has, for some years, been without any 
lav^ful government. But if the effect has only been to 
render the elections voidable, without affecting the 
validity of the acts of the government in its vari- 
ous departments, as a government de facto, then 
the election of Presidential electors and their giv- 
ing their votes, have the same validity as all other 
political acts of that body politic. But, in my 
opinion, the clause of the constitution in question 
is only directory, and cannot affect the validity of 
elections in the State, much less the official acts of 
the officers elected. The passage of a registration lav^r 



OPINIONS IN ELECTORAL COMMISSION. 211 

^was a legislative duty which the members on their 
oaths were bound to perform. But their neglect to 
perform it ought not to prejudice the people of the 
State. 

The objection that it does not appear b\^ the cer- 
tificate that the electors voted by ballot, or that thc}^ 
took an oath of office as required of all officers in 
South Carolina are so formal and manifestly frivolous, 
that I shall not discuss them. The presumption is 
that all due formalities were complied with. 

The only objections of any weight are those which 
charge that there v^as such anarchy and disturbance 
in the State during the elections, and such interference 
of United States troops and others therewith, that no 
valid election was held in the State, and it is impossi- 
ble to know what the will of the State was. This is 
placing the objections and the offer of proof to sup- 
port them, in their strongest light. 

I think it is unquestionably true, that such a state 
of things as the objection contemplates ought to exclude 
any vote purporting to come from the State ; for no 
such vote can be regarded as expressing the will of the 
State. But that is not the only question to be consid- 
ered. 

The first and great question is, as to the Constitu- 
tional power of the two Houses of Congress, when 
assembled to count the votes for President and Vice- 
President, to institute an investigation by evidence 
such as is necessary to determine the facts to be 
proved. This power of canvassing the electoral votes 
is constantly confounded with that of canvassing the 
votes by which the electors themselves were elected — 
a canvass with which Congress has nothing to do. 



212 MISCELLANEOUS WRITINGS. 

This belongs to the jurisdiction of the States them- 
selves, and not to Congress. All that Congress has 
to do with the subject is, to ascertain whether the 
State has, or has not, appointed electors — an act of the 
State which can only be performed by and through its 
own constituted authorities. 

It seems to be also constantly overlooked or for- 
gotten, that the two Houses, in their capacity of a 
convention for counting the electoral votes, have only 
a special and limited jurisdiction. They are not at all 
invested with that vast and indefinite power of inquisi- 
tion which they enjoy as legislative bodies. Until met 
for the specific purpose of the count, they have no 
power over the subject, except to pass such laws as it 
is competent for the legislative branch of the Govern- 
ment to pass. The electoral votes are in sealed 
packages, over which the two Houses have no control. 
They have not, constitutionally, any knowledge of 
these until they are opened in their presence. Their 
jurisdiction over the subject of the count, and the 
votes and the appointment of electors, commences at 
that moment. They have no power before this to 
make investigations affecting the count. Could it 
have been in the contemplation of the Constitution 
that the two Houses, after commencing the count, 
should institute such an investigation as the objectors 
propose — involving (as it would be likely to do) many 
weeks in the jDrocess ? It seems to me impossible to 
come to such a conclusion. 

When the state of things in a State is of such a public 
character as to be within the judicial know^ledge of the 
two Houses, of course, they may take notice of it, 
and act accordingly — as was done in the times of 



OPINIONS IN ELECTORAL COMMISSION. 213 

secession and the late civil w^ar — or as might have been 
done at any time, so long as the seceding States were 
not in harmonious relations with the general Govern- 
ment. But when a State is in the enjoyment of all 
those relations, when it is represented in both Houses 
of Congress, is recognized by the other departments of 
the Government, and is known to have a government 
republican in form — in other words, when all the public 
relations of the State are the same as those of all the 
other States, how can the two Houses in convention 
assembled (and assembled for such special purpose), go 
into an investigation for the purpose of ascertaining the 
exact state of things within the State, so as to decide 
the question (perhaps a very nice question to be 
decided), whether the tumults and disorders existing 
therein at the time of the election, or the presence of 
the troops sent there by the President for the preser- 
vation of the public peace, had such an influence as to 
deprive the State of its autonomy and the power of 
expressing its will in the appointment of electors ? 
Such an investigation, or one of any such character 
and extent, was surely never contemplated to be made 
whilst the votes were being counted. 

That South Carolina is a State, and that she has 
a republican form of government, are public facts of 
which the two Houses (and we in their stead) must 
take judicial notice. We know that she is such a State. 
That she is capable of presenting the public order, 
either with or without the aid of the federal authority ; 
and that the executive interference, if made at all, was 
made in the exercise of his proper authority, for the 
reasons set forth in his public proclamations and 
orders, are facts to be presumed. At all events, the 



214 MISCELLANEOUS WRITINGS. 

two Houses, under their special authority to count 
the electoral votes, are not competent to take evidence 
to prove the contrary. 

I do not doubt that Congress, in its legislative 
capacity, with the President concurring, or by a two- 
thirds vote after his veto, could pass a law by which 
investigation might be had in advance, under proper 
regulations as to notice and evidence and the cross- 
examination of witnesses ; the results of which could 
be laid before the two Houses at their meeting for the 
count of votes, and could be used by them as a basis 
for deciding whether such a condition of anarch}'-, dis- 
turbance and intimidation existed in a State at the 
time of the election of its electors, as to render its vote 
nugator}^ and liable to be rejected. But without the 
existence of a law of this sort, it is, in my judgment, 
impracticable and unconstitutional for the two Houses 
to attempt the decision of such a question. The 
investigations made by legislative committees, in the 
loose manner in -which they are usually made, are 
not only not adapted to the proper ascertainment of 
the truth for such a purpose, but are totally unauthor- 
ized b}^ the Constitution. As methods of inquiry for 
ordinary legislative purj30scs, or for the purpose of 
laying the foundation of resolutions for bringing in an 
impeachment of the President for unconstitutional 
interference, of course they are competent ; but not for 
the purpose of receiving or rejecting the vote of a 
State for the Presidential office. They are not made 
such b\' any Constitutional provision or by any law. 
Legislation ma}-- be based on the private knowledge of 
members, and a resolution to bring in an impeachment 
may rest on ex-parte affidavits or on general informa- 



OPINIONS IN ELECTORAL COMMISSION. 215 

tion ; and, therefore, the evidence taken by a commit- 
tee cannot be decreed incompetent for such a purpose ; 
but is often of great service in giving information to 
the Houses as legislative bodies, and to the House of 
Representatives as the grand inquest of the nation. 
But the decision to receive or reject the vote of a 
State, is a final decision on the right of the State in 
that behalf, and one of a most solemn and delicate 
nature ; and cannot properly be based on the deposi- 
tions of witnesses gathered in the drag-net of a Con- 
sional committee. 

For these reasons I am clear that the evidence 
offered in support of the objections made to the elec- 
toral votes of South Carolina cannot be received. 

These are, in brief, the viev^s which I entertain in 
reference to this case ; and under them, I am forced to 
the conclusion that the objections made to the votes 
given by the electors certified by the Governor of the 
State, and the evidence offered in support of the same, 
are insufiicient ; and that the said votes ought to be 
counted. 



ELECTORAL COMMISSION. 



Mr. Black's article In the North American Re- 
view on the Electoral Commission of 1877 is per- 
vaded by an entire disregard of two fundamental 
truths, which furnish a complete answer to his argu- 
ment. The first is, that the United States is a 
government of law and not a democracy. The second 
is, that the several States, and not the general Gov- 
ernment, have the appointment of electors of President 
and Vice-President, and are the sole judges of their 
appointment. 

Mr. Black assumes that the popular vote was in 
favor of Tilden and Hendricks and against Hayes and 
"Wheeler. Conceding that this may have been true, 
yet if a majority of the electors were in favor of 
Hayes and Wheeler, the latter were constitutionally 
elected. 

If the United States were a pure democracy, the 
mere count of hands would decide all questions abso- 
lutely, w^ithout regard to the wisdom or justice of 
the decision. It would make laws as well as elect 
officers. It would be an absolute test of civil right 
and wrong, and, of course, what is right and wrong 
would depend on the absolute truth of the count. If 
the vote of one Louisiana negro, or of one New York 
rough, were omitted, it might wholly turn the scale. 
The discovery of such an omission at anj'- time would 
change the result. A law might stand for a year and 



218 MISCELLANEOUS WRITINGS. 

then be subverted ; a President might act as such for 
three years, and then be unseated on the discovery of 
the supposed mistake. Such discoverj^ it is true, 
would depend on human testimony, which is some- 
times falHble and sometimes corrupt ; no matter for 
that, as it is the only guide, the consequence must 
follow. The principles of pure democracy would 
demand it. 

A government regulated by law is conducted on 
different principles. Under such a government a mat- 
ter sometimes becomes settled. If a court of last 
resort decides a controversy the decision stands. If 
an election is held and decided according to law, there 
is an end of the matter. In the one case, as in the 
other, mistakes may be made in fact. But the law- 
does not tolerate a change. It deems certainty, security 
and peace preferable to eternal contention. It regards 
some things as settled and not to be disturbed. It pro- 
vides all reasonable opportunities of scrutiny and 
review, but imposes an end to controversy somewhere. 
It recognizes fallibility and mistake to a certain extent, 
but beyond all that, demands that its decisions shall 
be accepted as infallible. 

Again, in gathering up the results of the public 
will, it proceeds by rules adopted and laid down before- 
hand. These rules are regarded as wholesome restraints 
on faction, and on corrupt influences of all kinds. To 
carry out these rules, it appoints public agents, officers 
and tribunals. Their action, subject to regular pro- 
cesses of correction (which are also prescribed) are 
received as definitive. With all its imperfections, this 
system is regarded better than anarchy, which would 
follow the want of it. 



ELECTORAL COMMISSION. 219 

It cannot be doubted that the division of a State 
into small constituencies, each acquainted with its 
o-wn wants and its own men, is a wise feature in a 
constitution. These constituencies often choose a 
different majority of representatives from that which 
would be chosen by a general vote of the whole popu- 
lation. The State of New York has one hundred and 
tv^'cnty-eight legislative districts, each entitled to a 
representative. A majority of these constituencies 
may be republican, whilst a majority of all the voters 
in the State may be democratic. This w^ould arise 
from a large body of democratic voters being crowded 
into a locality — say the Cit}'^ of New York. Still the 
arrangement of constituencies is a wise one, though 
an artificial one. There is no reason to suppose that 
the State would be any better governed if the Irish 
vote of the city should control the policy of the whole 
State, than it would if the majoritj^ of the constituen- 
cies controlled it. 

Our whole governmental system is an artificial 
one, regulated and controlled by law ; and it is this 
very feature of our government wdiicli secures public 
safety and order, and which, if anything can, will give 
perpetuity to our republican institutions. It is not 
the roar of mere numbers, but the still, strong voice 
of an organized community, \vhich expresses the power, 
the wisdom and the dignity of a people. 

Stowe, 1877. 



220 miscellaneous writings. 

Reply to Charges as to Conduct as Member of 
ELECTORAL COMMISSION. 

[Newark Daily Advertiser, Wednesday Evening, September 5, 1877.] 
JUSTICE BRADLEY SPEAKS. 

We have just received the following prompt and 
manlj letter from Mr. Justice Bradlej^ which so fully 
and completely explains itself that it needs no further 
comment. It comes from his summer retreat at Stowe, 
Vt., and though no vindication of his course in the Elec- 
toral Commission, of which he was the most conspic- 
uous member, seemed called for by those who were 
famiHar with all the facts, yet the injustice of the 
rumor that has recently been circulated, has prompted 
him to stamp it as basely false, and he does so with 
an emphasis of conscious rectitude that leaves no 
ground for mistake. His statement confirms what we 
took occasion to say on authority of almost equal 
responsibility as his own. 

Stowe, Vt., Sept. 2, 1877. 
Editor of the Advertiser : — I perceive that the 
New York Sun has reiterated its charge that after 
preparing a written opinion in favor of the Tilden 
electors in the Florida case, submitted to the Electoral 
Commission, I changed my views during the night 
preceding the vote, in consequence of pressure brought 
to bear upon me by Republican politicians and Pacific 
Railroad men, whose carriages, it is said, surrounded 
my house during the evening. This, I believe, is the 
important point of the charge. Whether I wrote one 
opinion, or twenty, in my private examination of the 



ELECTORAL COMMISSION. 221 

subject, is of little consequence, and of no concern to 
anybody, if the opinion which I finally gave was the 
fair result of my deliberations, without influence from 
outside parties. The above slander was published 
some time since, but I never saw it until recently, and 
deemed it too absurd to need refutation. But as it is 
categorically repeated, perhaps I ought to notice it. 
The same story about carriages of leading Republi- 
cans, and others, congregating at my house, was cir- 
culated at Washington at the same time, and came to 
the ears of my family, only to raise a smile of con- 
tempt. The whole thing is a falsehood. Not a single 
visitor called at my house that evening ; and during 
the whole sitting of the Commission, I had no private 
discussion whatever on the subjects at issue with any 
person interested on the Republican side, and but very 
few w^ords with any person. Indeed, I sedulously 
sought to avoid all discussion outside the Commission 
itself. The allegation that I read an opinion to 
Judges Clifford and Field is entirely untrue. I read 
no opinion to either of them, and have no recollection 
of expressing any. If I did, it could only have been 
suggestively, or in a hypothetical manner, and not 
intended as a committal of my final judgment or 
action. The question was one of grave importance, 
and, to me, of much difficulty and embarrassment. I 
earnestly endeavored to come to a right decision, free 
from all political or other extraneous considerations. 
In my private examination of the principal question 
(about going behind the returns), I wrote and re-wrote 
the arguments and considerations on both sides as 
they occurred to me, sometimes being inclined to one 
view of the subject, and sometimes to the other. But 



222 MISCELLANEOUS WRITINGS. 

finally I threw aside these lucubrations, and, as you 
have rightly stated, wrote out the short opinion which 
I read in the Florida case during the sitting of the 
Commission. This opinion expresses the honest con- 
clusion to which I had arrived, and which, after a full 
<:onsideration of the whole matter, seemed to me the 
only satisfactory solution of the question. And I 
may add, that the more I have reflected on it since, 
the more satisfied have I become that it was right. 
At all events, it was the result of my own reflections 
and consideration, without any suggestion from am' 
quarter, except the arguments adduced by counsel in 
the public discussion, and by the members of the Com- 
mission in its private consultations. 

As for the insinuations contained in a recent article, 
published in a prominent periodical by a noted politi- 
cian,* implying that the case was decided in conse- 
quence of a political conspiracy, I can only say (and 
from the peculiar position I occupied on the Commis- 
sion I am able positively to say) that it is utterly 
devoid of truth, at least, so far as the action of the 
Commission itself was concerned. In that article the 
writer couples my name with the names of those whom 
he supposes obnoxious to public odium. The decencies 
of public expression, if nothing more, might well have 
deterred so able a writer from making imputation* 
which he did not know to be well founded. 

Yours respectfully, 

(Signed) JOSEPH P. BRADLEY, 

•Judge Jeremiah S. Black. 



ELECTORAL COMMISSION. 223 

ELECTORAL COMMISSION. 

The abuse heaped upon me by the Democratic press, 
and especially the New York Sun, for the part I took 
in the Electoral Commission, appointed to decide the 
controverted questions which arose upon the Presi- 
dential election of 1876-7, is almost beyond concep- 
tion. Malignant falsehoods of the most aggravated 
character were constantly published. I bore these 
things in silence until it was stated that Judge Field 
had said, in conversation, that I had changed mj 
mind during the sitting of the Commission, and that 
I had first v^ritten an opinion in favor of Tilden, and 
had read it to him and Judge Clifford. Wlien this 
story appeared the Judge was in California and I was 
spending my vacation at Stowe, Vt. I immediately 
wrote to him, calling his attention to these charges. 
He replied, denying that he used the expressions attrib- 
uted to him, and had said nothing derogatory to my 
honor or integrity. 



LAW, 



NATURE AND OFFICE 



BOND AND BASIS OF CIVIL SOCIETY. 



INTRODUCTORY LECTURE 

TO THE 

Law Department of the University of Pennsylvania, 
Wednesday, October 1st, 1884, 

BY 

JOSEPH P. BRADLEY, 

Justice of the Supreme Court of the United States. 



Quare quum lex sit civilis societatis vinculum, jus autem legis aequale, 
quo jure societas civium teneri potest, quum par non sit condicio civium ? 
. . . Quid est enim civitas nisi juris societas? — Cic. de Repub. I. 32. 



LECTURE ON LAW. 227 



Philadelphia, October ii, 1884. 

Hon. Joseph P. Bradley. 

Dear Sir: — The committee appointed for that purpose by the 

Students of the Law Department of the University of Pennsylvania, 

wish to express to you their appreciation of the address delivered 

before them on the ist instant, and also to respectfully request that you 

will lend to them your manuscript in order that it may be printed. 

Hoping that you will give this request a favorable consideration, we 

are. 

Very respectfully yours, 

Joseph S. Clark, Chairman, 
Luke D. Bechtel, 
George H. Chesterman, 
F. S. Phillips, 
Henry C. Todd, 

Comtm'flee. 



Washington, October 13, 1884. 
Gentlemen : 

I have duly received your kind letter written as a committee of 
the Students of the Law Department of the University of Pennsyl- 
vania, asking for a copy, for publication, of the lecture delivered by me 
before them on the ist instant. Duly acknowledging this mark of 
their appreciation of the lecture, I would say that I have no desire to 
withhold it from publication, though it was not prepared under circum- 
stances to render it fit for the test of criticism. In the hope, however, 
that its suggestions may lead the thoughtful to a fuller and more 
mature consideration of the subject discussed, I submit it to your dis- 
posal. With kind wishes for the success of yourselves and those 
whom you represent, in the study and pursuit of the noble profession 
you have chosen, I am. 

Respectfully and truly yours, 

JOSEPH P. BRADLEY. 

Messrs. Joseph S. Clark, Chm'n, Luke D. Bechtel, George H. Ches- 
terman, F. S. Phillips, Henry C. Todd, Committee. 



228 MISCELLANEOUS WRITINGS. 

LECTURE. 

Young Gentlemen : An introductory lecture to a 
course of law is not unnaturally directed to a general 
view of the subject, its nature, the principles on which it 
is founded, its relations to other departments of knowl- 
edge, the proper methods of its study, and the aims 
which the student should have in view. To these 
heads, or some of them, I shall endeavor to direct 
your attention on this occasion. 

First of all, we ought to have a clear conception 
of the subject itself— law — what it is, and what is its 
office and use in human affairs. Perhaps the imagina- 
tion v^ould be more impressed by picturing to our- 
selves the absence of law, than by attempting to 
describe its operation and effect. Suppose an omnip- 
otent edict should presently go forth, abolishing all 
law ; what would be the condition of things in this 
cit}^ ? A would walk into B's banking house and take 
from his box or safe any amount of money that his fancy 
dictated, unless B, by superior strength, could protect 
his possesions. In like manner, C would enter D's 
store, and take such articles as he chose, unless D 
could prevent him by force. Your neighbor, being in 
want of books for his librarj^, could take from yours 
whatever he needed, and any clothes from your v^ard- 
robe which might strike his fanc^^ The first bully you 
might meet on the sidewalk could strike you down 
w^ith impunity, either for the purpose of indulging in 
sheer malice and wickedness, or of possessing himself 
of any valuables about your person. You might, at 
any moment, be turned out of house and home by 
a stronger person ^vho fancied your luxurious and 



LECTURE ON LAW. 229 

elegant surroundings. There would l3e no such thing 
as property, or debts, or securities. Everything would 
lie in possession, and that would go to the strongest. 
Any association of good men, entered into for mutual 
protection, would be so far the establishment of law, 
and w^ould be contrary to the supposed edict abolish- 
ing it. Society would be dissolved and ended. Society 
cannot exist without law. Law is the bond of society ; 
that which makes it ; that v^hicli preserves it and 
keeps it together. It is, in fact, the essence of civil 
society. 

DEFINITION OF LAW. WHAT IT IS. 

And now that we see what law accomplishes, and 
what w^ould be the effect of its abolition, we may pro- 
ceed to a definition of it. Blackstone says that 
municipal or civil law is a rule of civil conduct, pre- 
scribed by the supreme power in a State, commanding 
what is right and prohibiting what is wrong. I w^ould 
rather say that it is those rules and regulations which 
the inhabitants of a particular country or territory 
adopt and enforce for the establishment and main- 
tenance of civil government, the preservation of 
social order, the distribution of justice, and the 
advancement of the general good ; or, it is that body 
of rules which a political society enforces by physical 
power for the protection of its members, in their per- 
sons and property, and the promotion of their happi- 
ness. Whatsoever rule of conduct is not enforced by 
the ph^^sical power of society is not law. It may be a 
rule of morals, or of courtesy, or of honor ; but it is 
not law. That conduct which the State requires of 
its citizens, or those within its jurisdiction (who are 



230 MISCELLANEOUS WRITINGS. 

^was2 citizens for the time being), and which it regards 
as of sufficient consequence to enforce by its physical 
power, is civil conduct, and the rules by which it is 
prescribed constitute the law of that State. It matters 
not how it came to be the law, whether it was pre- 
scribed by an autocrat or a legislative body, or arose 
from mere custom and usage, or the decrees of the 
courts — if the ph^'sical power of society, that is, the 
State, is put forth for its vindication, it is law ; if not, 
it is not lav^. Sometimes popular opposition to a law 
may prevent its execution and paralyze the power of 
the State. This produces, so far as it extends, a relax- 
ation of the bonds of society and a return to a lawless 
condition, but as soon as the public power can be 
restored, the reign of law returns. 

With the exception of omitting that distinguishing 
characteristic of law, its enforcement by the physical 
power of the State, Blackstone's definition may be 
logically correct. The law making power is necessarily 
the supreme power in a State ; the rules it enforces are 
presumed to be known, and may therefore be said to 
be prescribed ; and that they command what is right 
and prohibit -what is wrong is a legal truism, though 
it is also true in a moral sense, inasmuch as the laws 
of a State are the final expression of the nation's sense 
of justice and political w^isdom, developed from its his- 
tory and experience, and formulated by its highest 
intelligence. So much, at least, may be said of the 
law, viewed in its most mundane and prosaic aspect, 
as practically exhibited in human affairs, w^ithout 
attempting to scale those sublime heights from which 
philosophy may take even a more ennobling view of 
the subject. Ulpian defines justice (or lav^^ in its 



LECTURE ON LAW. 231 

essence), as ** Constans et perpetua voluntas jus suum 
cuique trihuendi.^' And Richard Hooker, a "writer of 
great power and elegance, sums up his conclusion on 
the subject as follow^s : "Of law there can be no less 
acknowledged than that her seat is the bosom of 
God, her voice the harmony of the world ; all things 
in heaven and earth do her homage, the very least as 
feeling her care, and the greatest as not exempted 
from her power ; both angels and men, and creatures 
of what condition soever, though in different sort and 
manner, yet all w^ith uniform consent, admiring her 
as the mother of their peace and joy." 

GENERAL DIVISION OF LAW. 

The law extends not only to the relations and con- 
duct of individuals towards each other, but to the 
organization of society itself, its form of government, 
its public institutions and works, and even to the 
mutual relations between the State and other States. 
The different subjects to which it is thus extended 
renders its division natural into public law and pri- 
vate LAW ; and that of public law into international 
law and Constitutional la\^^ 

The laws relating to crimes are generally regarded 
as public law ; but it seems to me that they might 
properly be considered as belonging respectively to 
that branch of the laws, public or private, w^hich is 
violated by the commission of the crimes. A man who 
takes my property may be a mere trespasser or a 
thief, according to the manner and intent with which 
he takes it, but it is equally a jjrivate injury to me ; pun- 
ishable in the one case by damages for the injury, and 
in the other by imprisonment or corporal chastisement, 



23 2 MISCELLANEOUS WRITINGS. 

with a return of the goods, if they can be found. The 
reason for calling the crime a public offence, committed 
against society itself, has always seemed to me too 
metaphysical. It is said that a crime, especially if 
it reaches the grade of felony, is a violation of the 
social compact, and tends to dissolve society ; or that 
it is an insult to the majesty of the sovereign ; but 
this is only in degree ; ever}- violation of law may be 
characterized in the same manner, and the statement 
would be true to a certain extent. 

International law consists of those rules dictated 
by natural justice, by long usage, or b}^ treaties, which 
form the law of intercourse between the State or nation, 
and other States or nations. Though international, 
it is enforced by each individual nation as its own law, 
there being no common judge to enforce it. And each 
nation, on its own responsibility, puts its own con- 
struction upon the law, at the risk of a conflict with 
other nations, if they should construe it differently. 
This law is to be found in the works of those sages of 
the law who have made international law^ their special 
study, and w^ho have become generally recognized as 
authorities. They are sometimes called publicists, 
because international law is regarded as public law 
par excellence. Of this class are Grotius, Puffendorff 
Bynkershock, Vattel, Wheaton, Phillimore, and others. 

There is a branch of international law, which 
is called private international law, which has respect 
to the rights and duties of persons who have rela- 
tions personal, or by means of property or contract 
with different countries, whose laws conflict v^ath each 
other in reference to the matter in hand ; and it is the 
office of private international law to determine, accord- 



LECTURE ON LAW, 233 

ing to the principles of justice, what rule should be 
followed. Ordinarily every man's rights and duties 
are determined by the law of the place where he resides. 
But he may be the subject of some other sovereign 
claiming his allegiance, or he may own property located 
In another country', or he ma\^ have contracts made 
or to be performed there ; and it is the province of 
private international law to determine his rights and 
duties in all these cases. The validity and effect 
which shall be accorded in one country' to acts done in 
another, such as transferring property, recovering 
judgments, constituting executors, guardians, etc., is 
a matter of comity between the two countries and 
their tribunals ; and private international law deter- 
mines when this comity should be exercised. A num- 
ber of eminent writers have treated of this subject, 
sometimes under the title of Conflict of Laws, and 
sometimes under that of Private International Law ; 
such as Savigny, Story, and ^^our own learned towns- 
man, Mr. Wliarton. Chancellor Kent, in his Commen- 
taries, touches briefly, but with masterly precision, 
the subject of International Law in both of its aspects. 

In this age, w^hen the Atlantic Ocean has become a 
mere ferry, and foreign intercourse is so common, and 
in this country, w^here forty independent commun- 
ities are so closely related by business connections of 
every kind, this branch of intemationl law is of the 
greatest importance, and should be carefully studied 
by every American law^yer. 

Constitutional law prescribes the form of gov- 
ernment of a State, its general departments and their 
functions ; the political divisions of its territory, and 
the duties and powers assigned to each ; the various 



234 MISCELLANEOUS WRITINGS. 

kinds of delegates and officers to consult for the pub- 
lic good and execute the public will, and the modes of 
appointing them ; in other words, the framework of 
civil society, and the functions of its several parts 
The Constitutional law of a country is sometimes 
written, sometimes unwritten, and sometimes partly 
the one and partly the other. In this countr\^ it is 
mostly written, partly in a direct and formal act of 
the people, under the name of a Constitution, and 
partly in organic laws passed b}^ the legislature. The 
general grant of legislative power is deemed sufficient 
to authorize the legislative department to extend the 
organization of civil society to details which are not 
provided for in the outline drawn by the Constitution 
itself. Whatever law relates to a public function is 
Constitutional in its character, whether it defines the 
powder of a governor or a constable, or directs the 
mode of passing laws or of exercising the elective 
franchise. It touches the organization of the body 
politic, and that organization is, subjectively, the Con- 
stitution of the State. 

An appendix to Constitutional law, not generally 
regarded as belonging to it, though relating to the 
duties and powers of public functionaries, is Adminis- 
trative Law, which presides over the establishment 
and execution of those public institutions and \vorks 
which are created or carried on for the benefit and pro- 
tection of society, such as armies, navies, fortresses, sea- 
walls, light-houses, harbors, piers, bridges, highwa^^s, 
railroads, canals, mails, prisons, hospitals, poor-houses, 
asylums, universities, schools, and benevolent corpora- 
tions, all of which, when emanating from public 
authority (as they mostly do), exhibit the majesty of 



LECTURE ON LAW. 235 

the body politic in the energy of beneficent action, 
aiding, protecting and benefiting all its members and 
advancing human civilization. This subject is largely 
discussed by the French la\v3^ers as a separate branch 
of public law, and some of their -works are well worth 
the students' consideration. Ferriere's Treatise on 
Public and Administrative Law is a model of clear 
analysis, and is well worthy of being done into English, 
and studied in our legal institutions. 

Private Law consists of those civil rules and reg- 
ulations w^hich govern the private actions and mutual 
relations and dealings of all citizens, and of all other 
persons subject to the jurisdiction of the State. 
When w^e consider the innumerable relations and trans- 
actions which take place amongst men in society, it is 
apparent that the laws must necessarily be extensive 
and voluminous. Li the simple times of old a {qw 
rules might have been sufficient, but in the present 
complex state of society, having so man\^ industries, 
occupations and interests, and presenting so many 
phases of human life, all requiring the protection of 
the lav^s, it is indeed w^onderful that the civil law can 
be so all-embracing and omnipresent as to reach and 
provide for every exigency that can arise. But it does 
this and does it perfectly. It does it by means of a 
rigid and accurate classification of human relations 
and acts — a classification based partl}^ on nature, 
partly on custom, and partly on instituted or volun- 
tary conditions. The most striking natural relations 
are those of husband and wife and parent and child ; 
custom early established those of master and servant 
and guardian and ward, and that of magistrate and 
people grows out of the very construction of society. 



236 MISCELLANEOUS WRITING. 

But there are innumerable relations which men volun- 
tarily or involuntarily assume towards each other, 
either by conduct or by contract. If one injures 
another in person, reputation or property, the relation 
of injurer and injured is established between them, 
imposing upon one the duty of satisfaction for the 
injury, and giving to the other the right to demand it. 
If two or more enter into a contract (permitted by 
the law) thej^ mutually assume a contractual relation 
towards each other, binding each to the others, for 
the performance of his part of the contract, and a 
failure to perform involving the duty of satisfaction 
and the right to demand it. This is a mere general 
statement of what occurs every moment ; but the 
variations of right and duty growing out of the 
infinite variety of facts and shades of difference in 
the many cases that occur, render the complicated 
mass of rules and principles necessary to meet and 
provide for all, forbidding to the beginner. He must 
learn well the great principles of justice, and the sys- 
tem of legal analysis and classification, and then light 
will begin to break in upon the chaos, and all things 
will at last become easy and plain. 

THE SUBJECT MATTER OF LAW, AND THE PLACE WHICH 
ITS STUDY OCCUPIES AMONG THE SCIENCES. 

Having now described in a general way, w^hat lav^r 
is, and what are its objects and uses, and its general 
divisions, let us stop a moment and take a little more 
accurate survey of it as a whole, as a subject of 
learned study, and as to the place it holds amongst 
the other studies to which men devote themselves, 
particularly^ those of a professional character. 



LECTURE ON LAW. 237 

Every science, or branch of human knowledge, has 
a subject matter which it scrutinizes, studies, analyzes 
and expounds, as to its substance, its accidents, its 
relations, causes and effects, and the natural laws 
which govern its manifestations. The subject matter 
of mathematical science is number and figure ; the 
subject matter of astronomy is the heavenly bodies, 
and it explores their nature, their appearances, their 
positions, their motions, and the relations which they 
have to each other ; the subject matter of geology is 
the structure of the earth, 'which is explored in its 
various strata of rocks, their relative super-position 
and age, their composition and contents, the remains 
of ancient vegetable and animal life embedded in 
them, and the causes which have led to their produc- 
tion ; the subject matter of natural philosophy is the 
mechanical forces of nature, and the phenomena which 
they produce ; of botany, the vegetable kingdom ; of 
natural history, the animal kingdom, Man himself 
forms a subject of profound study ; his body, wnth its 
sustentation and preservation, forms the subject of 
physiology and medical science ; his mind and its oper- 
ations, form the subject of mental philosophy, includ- 
ing metaphysics ; his language forms the subject of 
philology, grammar and rhetoric ; his relations to his 
Maker, and the unseen world, including his moral 
relations to his fellow-men, form the subject of religion, 
or religious philosophy and ethics. All these subjects 
present vast and important fields of inquiry, worthy 
of profound study ; but none of them exceeds in 
importance the subject matter of the science of law — 
CIVIL SOCIETY — that highest phase and outgrowth of 
humanity, without which men would be but savages ; 



238 MISCELLANEOUS WRITINGS. 

without which, unless hedged about by divine influ- 
ences in some garden of Eden, none of the sweet and 
beautiful manifestations of human life could possibly 
exist. 

CIVIL SOCIETY FORMED AND SUSTAINED BY LAW ; WHICH 
IS ITS REAL OFFICE AND PURPOSE. 

No doubt man is naturally a social being. Certain 
individuals, it is true, for the sake of wild freedom, or 
from some acquired disgust, may prefer to wander away 
from their fellows, and lead isolated lives ; but take 
them as a race, men love company, and the mutual 
support and aid, sympathy, affection, and communi- 
cation by language, which company gives. They pos- 
sess, however, selfish passions, which are often fierce 
and ungovernable ; and, under the most favorable 
circumstances in which they can be placed, society 
could not, for an}^ length of time, be maintained on 
the voluntary principle, or under the influence of 
mere moral restraints. There must be government, 
there must be force, there must be a civil organization 
of some kind — that is, the organization of a civitas 
or State, wielding the concentrated power of the 
community. To this, if not naturally led by their 
instincts, men are compelled by necessity', as soon as 
they increase in numbers and possessions. They can- 
not separate. They must remain together, not only 
in obedience to their instincts of affection, communi- 
cation and sympathy, but for their mutual protection 
against other bodies of men, who would otherwise 
drive them from their seats, or make them captives 
to their will. So that civil society- is a necessity of 
our nature and of the conditions bv which we are 



LECTURE ON LAW. 239 

surrounded. And this is the subject matter of our 
science, taken in its broadest sense. It is true that 
the pohtical philosopher, the pohtical economist, the 
statesman, and the legislator, as well as the lawyer, 
finds in civil society the subject of their studies and 
investigations ; but what, after all, is the object of 
their studies, but to ascertain what are the best and 
most beneficial laws, and how the existing laws may 
be improved for better promoting human happiness ? 
and what is this but taking a more lofty and extended 
view of the law itself ? looking at it in reference to its 
objects and uses ; and thereby comprehending more 
perfectly its spirit, its essence and its application ? In 
other words, it shows us that the profound student 
of law can never feel satisfied with his acquirements 
in the science until he is able to take philosophic and 
statesmanlike views of the subject to which it relates — 
the order of civil society — and of its bearings on 
human happiness. 

We see, then, that in approaching the study of the 
law we approach a subject of living interest and 
importance, independently of its attractions as a pro- 
fessional calling. It is not merely dead books, and 
their contents, that we set about to learn, but a living 
thing — civil society — in its organization and its rules, 
under all phases of human experience, human inter- 
course, human activity, and human interest. 

The student of medicine examines with minutest 
care the subject matter of his science, namely, the 
human body ; he scrutinizes it in all its parts ; the 
fimctions of each part and its relations to the other 
parts ; the things that effect it beneficially, and those 
that affect it hurtfulh^ It is his study from morning 



240 MISCELLANEOUS WRITINGS. 

to night to ascertain its functions, its needs, its dan- 
gers, its injuries, and the modes and means of repair- 
ing them. So the student of law, in order to obtain 
a profound conception of his science, must, in Hke 
manner, study deeply the subject matter of it — civil 
societ}^ — in its construction, its workings, its rules ; in 
the solution of all questions of civil right or duty that 
arise in every situation in which a man can be placed, 
in every transaction in which he may be concerned ; 
in the prescription of the proper remedy for the asser- 
tion of every right, and for the prevention or redress 
of every wrong. For the law is everywhere, and 
extends to everything of human interest. 

At first view wdien we w^alk about amongst our 
fellows-men, we may not observe the omnipotent influ- 
ence and controlhng effect of the law. Its power is so 
subtle and all-pervading that everj^thing seems to take 
place as the spontaneous result of existing conditions 
and circumstances. It is like gravitation in the natu- 
ral world, which, whilst it governs and controls every 
movement, and produces all the order of the universe, 
is itself unseen. It must be studied in its effects in 
order to understand its power. So with law in civil 
society. It is over, under, in and around, every 
action, that takes place. Its silent reign is seen in the 
order preserv^ed, the persons and property protected, 
the sense of security manifested ; in the freedom of 
intercourse, in the cheerful performance of labor, in the 
confidence with which business is transacted, and trust 
is reposed by one man in another ; in the peaceful and 
contented pursuit of trades and occupations, and the 
bestowral of services ; all goes on cheerfully and 
smoothly, working out and interworking the constant 



LECTURE ON LAW. 241 

evolution of human happiness — because of the ever- 
existing (though generally unrecognized) conscious- 
ness of the presence, the watchfulness, and the 
all-sufficient protection of the law. In ordinary con- 
duct, conformit}^ to its rules and requirements is pur- 
sued almost as a second nature ; but in transactions 
requiring authentic evidence, greater knowledge, per- 
haps professional skill, is required ; and when questions 
of ambiguity, complexity and difficulty arise, which 
the parties themselves cannot amicably solve, then, of 
course, the skill of the lawyer, and perhaps the wis- 
dom and authority of the judge, must be resorted to. 
But compared with the millions of transactions \vhicli 
take place, these ripples on the surface, do not often 
occur. The mighty river of things generally moves 
on with an undisturbed current ; but only because it 
is kept in its banks and regulated in its course by 
the power of law. 

THE ANALYSIS OF CIVIL SOCIETY AND OF THE TRANSAC- 
TIONS THAT TAKE PLACE THEREIN, FURNISHES THE 
MOST PRACTICAL GROUND OF ANALYSIS OF THE LAWS. 

Since law is the bond and basis of civil society, 
and the platform on Avhich, and according to which, 
all civil transactions are conducted and regulated, it 
follows, that the only analytical division of the science 
which is practically useful is, and must be, largely 
based upon an analysis of civil society, the transac- 
tions that take place in it, and the relations of its 
various members to the wdiole and to each other. 

Law itself, in its essence, cannot be analyzed ; it 
is simply the dictates of justice in the varied circum- 
stances and relations of life. Those circumstance:- 



242 MISCELLANEOUS WRITINGS. 

and relations may be analyzed and classified, and the 
dictates of justice in each case or class of cases may 
be ascertained and enunciated. In other words, not 
the law, but the subjects to which it is applied, are 
arranged into classes and under heads, and, having 
found the law applicable to each class or head, we 
speak as if we had analyzed the law^ itself. 

Ulpian, the great Roman lawyer, said (as Cicero 
had, substantially, said before him), that the law 
itself has onh'- three commands, '' honeste vivere, 
alterum non lasdere, suum cuique tribuere ;^^ "live 
rightly, do no wrong to another, give to ever^^ one 
his own"; leaving it to be inferred that all the rest 
consists in the application of these fundamental prin- 
ciples to particular cases. 

True, there are certain general rules and maxims 
of extensive application, each of which may furnish 
the subject of a chapter of law, showing how and in 
what cases and circumstances it is to be applied. 
Thus, the rule, ^' sic utere tuo, ut non alienum laedas,'' 
is constantly applied to hundreds of cases which it 
would be tedious to enumerate, but the nature of 
which could be indicated by a few examples, such as 
this : If 3^ou conduct a stream on to your own land 
for the purjDose of irrigation, 3'ou have no right to 
allow it to wet and injure the land of your neighbor 
lying below j^ours. The rule is a rule of justice and 
may be treated of under a head or chapter of its own. 
But a collection of such general rules or maxims would 
not present a scientific arrangement of the laAv. They 
■would stand isolated from each other, without com- 
pleteness or symmetry, or any proper relation to, or 
connection with each other. Several authors, as Noy, 



LECTURE ON LAW. 243 

Wyngate, Francis and Broom, have made collections 
of these maxims, and have commented upon them by 
showing the manner in which, and the kind of cases to 
which, they are severally applied ; and these books 
are very useful in their wa}^, and v^'orthy of study ; 
but they exhibit no analysis or arrangement of the 
law, or the science of law. To make stich an analysis 
or arrangement, we must resort, as before stated, to 
the subject matter of the law, civil society and the 
various relations and transactions which it exhibits. 

There is one general division, hov^^ever, which runs 
through all the departments and branches of the law, 
which is not based on the subject matter, but rather 
on the nature of things ; it is that which considers the 
law under the three heads o^ Jura, Injuriie, Remedia — 
Rights, Injuries and Remedies. They might be con- 
sidered together, for every injury is the violation of 
some right, and has its appropriate remedy, or choice 
of remedies. But there are many injuries, or wrongs, 
which are deprivations of mere negative rights, and 
the injuries themselves assume a distinctive and promi- 
nent importance, making it desirable to subject them 
to a separate consideration ; such as most torts, 
including trespasses, assaults, libels, slander, etc. 
And, again, the remedies of the law have such a gen- 
eral similitude, and are governed by such peculiar 
regulations, that they need to be distinctly and sepa- 
rately considered. 

Another division, independent of the subject matter, 
is that between law and equity — the latter being a 
particular modification of the law in many cases 
where its strict general rules would be inadequate to 
the purposes of justice. The system of rules and pro- 



244 MISCELLANEOUS WRITINGS. 

ceedings which are adopted by courts of equity for 
effecting the desired modification, is treated of sepa- 
rately from the general system of the la^^. 

With these exceptions, and perhaps one or two 
others that have escaped me, the study and science of 
the law is divided and subdivided, according to the 
subjects to w^hich it is applied, and these embrace all 
the transactions and relations of society. 

In the consideration of rights the principle of 
analysis to which I have referred is at once rendered 
manifest. First comes the Constitution and order of 
the Commonwealth itself ; then, proceeding to private 
law, we first take up the personal rights and duties of 
individuals, their status as free or sendle, as husbands 
and wives, parents and children, guardian and ward, 
corporations, etc.; then comes up the consideration of 
property ; and this we divide into, first, real or 
immovable, as land, and, second, personal, including 
chattels and contracts ; and every contract furnishes 
a distinct head of law, so that v^^e have the law of 
sale, of loan, of partnership, of bills of exchange, of 
promissor}^ notes, of suretyship, of insurance, etc. 
And when we come to the department of injuries, or 
wrongs, \ve find it divided in like manner into many 
different heads, according to the nature of the wrong 
committed, each of which furnishes a distinct subject 
of investigation, and is treated of in separate books, 
as the law of libel, the law of slander, the law of 
assault and battery and trespass, the law of collisions, 
etc. In other w^ords, we find (what, from the nature 
of law, as we have considered it, we should naturally 
expect to find) that the analysis of the laws is based 
upon an analysis of civil society, and the transactions 
w^liich take place in it. 



LECTURE ON LAW. 245 

IS THE KNOWLEDGE OF LAW, OR JURISPRUDENCE, A 
SCIENCE ? 

A question often mooted is whether law (meaning, 
of course, the knowledge of law, or jurisprudence) is 
a science. If it is a science, it must have some neces- 
sary and fixed principles, different from the mere arbi- 
trary regulations of a despotic will, which may be one 
thing or another, according to the legislator's whim. 
The knowledge of such an accidental set of rules could 
certainly never be elevated to the dignity of science. 
And if law is of that arbitrary and empirical charac- 
ter, jurisprudence, or the knowledge of law, is clearly 
not a science. But law is not arbitrary and empirical 
any more than justice itself is so. Ulpian declares 
jurisprudence to be " divinarum atque humanaram 
rerum notitia ; justi atque injusti sciential 

JURISPRUDENCE A SCIENCE, BECAUSE LAW IS A NATURAL 
OUTGROWTH OF HUMANITY, AND NOT A MERE ARBI- 
TRARY SET OF RULES. 

In view of what has already been said with regard 
to the nature of law, it seems to me clear that it is 
one of the natural and inevitable outgrowths of 
humanity, like language, like the family relation, like 
clanship ; I do not say like society, because society 
and law are so intimately connected that the hypoth- 
esis of one is the hypothesis of the other. Justice 
and right, like truth, are the same in all countries and 
amongst all peoples ; and as law is the expression by 
any particular people of its sense of justice, it must 
have a natural law of origin and growth, similar in 
all States. Civil societv is substantiallv the same 



246 MISCELLANEOUS WRITINGS. 

thing in all countries, and law being the basis and 
exponent of civil society, must exhibit substantially 
the same general principles and the same features in 
all States. Each people may have some peculiar insti- 
tutions of its own, arising from its peculiar circum- 
stances or genius ; as, among the warlike tribes of 
Europe, in the middle ages, land was distributed and 
held upon the tenure of military service, and was made 
to descend to the eldest son as the person most capable 
of performing the ser\ace required. Of course, it will 
be expected that the peculiar genius of a people will 
find expression in their laws ; but human nature and 
the great mass of human actions are essentially the 
same amongst all peoples ; and the dictates of justice 
under like circumstances are ever the same. Therefore, 
a system of laws growing out of the experience and 
exigencies of one people may be adopted with but 
slight alterations to the experience and exigencies of 
another. The laws of any State in this confederacy 
might easily be adapted to the v^ants of the people of 
any other State. As a matter of fact, the lavv^s of 
England were adopted by all the old States and by 
most of the new ones, subject to such slight alterations 
as their condition and circumstances rendered neces- 
sary. And also, as a matter of fact, the laws of the 
Roman empire have again and again been drawn 
upon for supplying the imperfect system of English 
law with those rules of justice and right which had 
been educed and sanctioned by ages of Roman civiliza- 
tion. If we once concede that law is the voice of 
Justice, regulating the affairs of men in civil society, 
we cannot deny that it is, and must be, based upon 
uniform and permanent principles, and that it will be 



LECTURE ON LAW. 247 

evolved in substantially the same manner, and in sim- 
ilar formulas, in every community. And such is, 
indeed, the fact. In hardly any community on the 
face of the earth is it necessary for a person to 
be learned in its laws in order to live a peace- 
able and quiet life ; all he has to do is to follow the 
dictates of his conscience, and endeavor to do right, 
and he will be pretty sure to commit no offence 
against the laws. If there is one thing that mankind 
will have it is just laws. Society can no more subsist 
with unjust laws than it can without any laws. Even 
arbitrary and despotic sovereigns, however lawless 
themselves, generally take good care that the people 
shall have the benefit of good lav^rs for the regulation 
of their domestic affairs. 

Law, then, being the expression of man's sense of 
ustice in the regulation of civil society, is not an 
arbitrary and empirical set of rules ; but is founded 
upon immutable and eternal principles — the immutable 
and eternal principles of justice and right. It may 
differ in mere form and detail in different countries ; 
but it is essentially the same in all Avherever civiliza- 
tion prevails. 

It seems to me, therefore, that there cannot be a 
doubt that jurisprudence is a science, and one of the 
grandest sciences upon which the human mind can be 
employed. At the same time, it must be acknowl- 
edged that the light of that science is but faintly 
revealed, and only in obscure glimmerings, to those 
who do not gaze profoundly into its depths, and 
acquire that legal insight w^hicli onl}^ deep study and 
reflection can sfive. 



248 MISCELLANEOUS WRITINGS. 

THE ELASTICITY AND EXPANSIBILITY OF LAW TO MEET 
THE GROWING WANTS OF SOCIETY, ANOTHER PROOF 
THAT JURISPRUDENCE IS A SCIENCE. 

Another proof that law is not an arbitrary set 
of rules, but is an emanation of human nature, and 
subject to immutable laws of development, is the fact 
that it keeps pace with the growth and advancement 
of societ}^ and expands and adapts itself to every 
phase of social progress, whether in a moral or a 
material direction. The law of to-day is as adequate 
to the wants of our advanced social and material 
condition as the law^ of five centuries ago w^as to the 
restricted life and simpler habits of that period. And 
this principle of adaptation and expansion is inherent 
in the nature of law and does not depend upon, and 
does not generally v^ait for, specific legislation, though 
often aided and supported by legislation. It arises 
from the fact that law is the expression of justice as 
applied to the transactions of societ}-. As those trans- 
actions increase and multiph', they constantly demand 
the application of the rules of justice, or, as it is some- 
times termed, the extension of old principles (which 
are nothing but the principles of justice) to their 
peculiar conditions, and hence arises a new expres- 
sion of jtistice and a new rule of law. For it is a 
primary and fundamental rule, that law is founded 
on reason and justice, and that if no exact precedent 
can be found for deciding a case, it must be decided 
according to reason and justice and the analogy of 
previous cases most nearly resembling it. If a new 
instrument of trade comes into vogue, for example, a 
promissory note, it will not be long before general 



LECTURE ON LAW. 249 

usage and convenience will originate rules and regula- 
tions as to its use and as to the rights and obliga- 
tions arising upon it, which the courts (if wise and 
liberal in their Aaews) wnll sanction as just and 
equitable, and which will soon acquire the force of 
law. If a new mode of conveyance and transpor- 
tation is invented, for example, a railroad, with its 
steam locomotives and cars, it wall not be many years 
before, by the judicial application of the principles of 
justice, already to some degree exemplified in other 
modes of travel and transportation, a code of railroad 
law will be built up, answerable to all the requirements 
of the new circumstances. We elder members of the 
profession have seen this very thing take place in our 
own time, and could now exhibit to the astonished 
e3^es of our great predecessors, Coke and Hale and 
Holt, if they were permitted to revisit the earth, 
almost entire systems of law which thej^ never 
dreamed of as lying in undeveloped germ in the bosom 
of that common law which they loved so well ; unde- 
veloped then, because the exigencies of society had 
not yet arisen which required their elimination and 
announcement. And this is the way that the common 
law of any country arises and is developed. It is the 
intellectual form, the specific idea and counterpart of 
the progress of society. To stop this expansion of 
the law would be equivalent to stopping the growth 
and advancement of society, and the very pulse of 
humanity. 

When this judicial adaptation and expansion of 
the law becomes too slow for the progress of events, 
or w^ould require too violent a change, the legislature 
interposes and enacts a new law amendatory of or 



250 MISCELLANEOUS WRITINGS. 

additional to the old. Statute law and the natural 
growth of the common law go hand in hand to meet 
the new exigencies of life and business that are con- 
stantly manifesting themselves. 



THE GROWTH OF LAW NOT TO BE SUPPRESSED BY CODES : 
— USE OF CODES. 

This law of development is universal. No matter 
what codes may be devised for the purpose of fixing 
the law, and making it unalterable, in the nature of 
things it cannot stay fixed. Frederick the Great, of 
Prussia, was the originator of codes in modem 
Europe. He supposed that he could settle the law as 
easily as he could control his legions. He had a con- 
temptuous regard for lawyers and civilians ; and he 
directed his Chancellor to draw up a code, in which 
the whole law should be expressed in plain and terse 
propositions, which might be understood by all, and 
which would need no lawj^er to explain them. Such 
a code he intended to establish as the perpetual and 
unchangeable law of Prussia. Accordingly, a code 
was prepared ; but its imperfections prevented its 
adoption in Frederick's day. It was only adopted in 
the reign of his successor, after providing for the appli- 
cation of the principles of justice to new cases that 
might arise. This is the famous Landrecht of Prussia, 
which has produced innumerable commentaries for its 
explanation and application, and which, with all its 
pretensions, could not stop the progress of law, any 
more than it could stop the progress of human affairs. 

The Civil Code of France was adopted in 1804, 



LECTURE ON LAW. 251 

and at this day there are probably a thousand vol- 
umes of adjudged cases and commentaries on the code, 
which have all to be consulted in order to know what 
the law really is. 

Codes are undoubtedly useful for the purpose of 
settling disputed and doubtful points, and giving to 
the citizens the ordinary rules of law in a compact 
and intelligible form ; but they should not be allowed 
to usurp the prerogatives of justice itself, seated in 
man's bosom, by giving to the letter of the code the 
inexorable fixity of a statute, and thus reducing the 
exposition of the law to a question of philology and 
verbal criticism, instead of a question of reason and 
justice. Used as a statement of principles and rules 
applicable to cases clearly within their scope, and not 
as restraints upon the judge in reference to other cases 
which are not provided for, and which require a new 
application of principles, /. e., the principles of right 
and justice governing analogous cases, codes may not 
only be admissible, but may be of great service in 
systematizing and perfecting the law. The}^ should 
never be employed for the j^urpose of giving to the law 
a cast-iron fixity of form, and thereby repressing all 
progress and imposing a deleterious and smothering 
restraint upon societ}^ itself 

THE ROMAN LAW NOT A CODE, AS OFTEN SUPPOSED. 

It has been supposed by some that the Roman law, 
as it has been transmitted to us, being in writing, is 
in the form of a code ; but this is a mistake. The 
Roman, like the English and our own law, consisted 
of comom aud statute law. The former was a 
growth of time, exactly like that of England, with 



252 MISCELLANEOUS WRITINGS. 

small beginnings, and gradually expanding to meet the 
wants of civilization. It was founded on old consti- 
tutions, on the Twelve Tables, on Plebiscita, Senatus 
Consulta, edicts of the Prators, responses of the 
juris-consults. Imperial rescripts, and long usage and 
custom. The only codes ever adopted in Rome were 
the Twelve Tables, adopted about 450 years before 
Christ, and the Perpetual Edict of Hadrian, adopted 
131 years after Christ, 400 j^ears before the time of 
Justinian. The Edict, like the French Code, was the 
occasion of innumerable books of commentaries ; 
and it was in these commentaries, and other treat- 
ises on the law composed by the great juris- 
consults of Rome, that the common law of Rome was 
to be found. A great body of statute law grew up 
at the same time, consisting mostly of Imperial Con- 
stitutions. The two made up the whole law of Rome. 
Justinian appointed a commission of able lawyers, 
with Tribonian, his Minister of Justice, at its head, to 
make, not a code, but a digest of the writings of the 
juris-consults, which had much the same authority as 
our volumes of adjudged cases. This was done by 
making extracts from the best writers, and arranging 
them into a system, under different heads or titles, and 
dividing the whole into fifty books. This is the Digest, 
or Pandect, equal in bulk, if translated, to about three 
volumes of Bacon's Abridgment, which it resembles 
more in character than any other book of our law. 
It contains the common law of Rome in the very 
words of her great jurists, with all their reasonings 
and illustrations ; and if we except the Holy Scrip- 
tures, it is the greatest monument of wisdom v^hich 
antiquit}^ has bequeathed to us. 



LECTURE ON LAW. 253 

The next work of Justinian's Commissioners was 
what is called the Code (Codex) ; but it is not a code 
in our sense of the word ; it is a mere compilation of 
the existing statutes of the empire arranged in sys- 
tematic order, according to the plan of the Digest, and 
divided into twelve books. 

The Institutes is a small book altered from the 
Institutes of Gains (which had been in use for four 
hundred years) and prepared for the use of students. 
It is divided into four books, and contains a summary 
of the law exhibited in the Dicrest and Code. 

The Novels, or novellae constitutiones, are later 
statutes, niostl}^ adopted during the reign of Justinian, 
for supplying deficiencies found to exist in the Digest 
and Code, or making amendments in the law. One of 
these novels, the llSth, is celebrated as being the law 
from which our statute of distribution of the personal 
estates of deceased persons was taken. 

These four works, the Digest, Code, Institutes and 
Novels constitute the Corpus Juris Civilis of Rome. 
They exhibit precisely the same characteristics pre- 
sented by our own laws as regards the gradual 
growth and progress of the law, and its adaptation 
to the changing circumstances and conditions of 
society. 

It is to be hoped that you will some da^^ make the 
acquaintance of this splendid system of law, not 
merely as a matter of curiosit\% but as the source and 
fountain from which much of the common law has 
been drawn, as well as an inexhaustible storehouse of 
principles, rules and distinctions, which are succeptible 
of constant application to the circumstances of modem 
societv, and the knowledge of which will be of signal 



254 MISCELLANEOUS WRITINGS. 

advantage in the pursuit of your profession. Hitherto 
these magnificent monuments, except the Institutes, 
have remained untranslated into EngHsh, although 
the civilians of Oxford and Cambridge are now begin- 
ning the herculean task. But to read them in their 
original terse and forcible Latin will, of itself, be 
accompanied w^ith the great advantage of perfecting 
3"Our familiarity with that tongue, wdiich an accom- 
plished lawyer cannot well be without. 

But my object in referring to the Roman law is to 
show that it is not, as some have supposed, an excep- 
tion to the general rule, that law is an outgrowth of 
.human nature, and is subject to immutable laws of 
development according to the progress and necessities 
of civil society. From this general character of law, 
as before stated, I deduce an additional argument to 
those already advanced, that the knowledge of law, 
or jurisprudence, maj" justly be called a science. 

AS A SCIENCE THE LAW CAN ONLY BE ACQUIRED BY LONG 
AND PATIENT STUDY. 

But it is necessary to warn you that as a science 
it is not to be acquired in a day, nor in a year, but 
only by the ^' lucubrationes viginti annorum.''^ As in 
the creation, we may suppose that the light of the 
stars did not all burst upon man at a single moment, 
but came upon him from their distant chambers in 
successive beams one after another, according to their 
recondite stations in space ; so in the study of law, 
one great principle after another comes to the yearn- 
ing mind, and overspreads it with light and gladness ; 
and many long years may elapse before one can feel 
that he has really mastered the law, and fully obtained 



LECTURE ON LAW. 255 

that "gladsome light of jurisprudence," spoken of b}' 
Lord Coke. There may be one or two men in a gen- 
eration, of startling genius, who by some natural 
inspiration or instinct, become great lawyers at a 
bound and achieve a glorious career without any great 
study or seeming effort. But they appear like the sum- 
mer tornado, wathout observation or premonition. 
They are a la^v unto themselves alone, and furnish no 
guide or example for others. Ordinary men are not 
thus inspired ; it wall not be safe for you to hope for 
any such inspiration. You must calculate on travel- 
ling the old dustv road which we have all travelled 
before you. You must look forward to hard toil and 
slow and steady acquirement. Unless you can make 
up your mind to this, you had better undertake some 
other pursuit. I do not wish to discourage you, but 
to set before you the truth. The reward of persever- 
ance is sufficiently splendid to give 3'ou courage and 
hope ; but you cannot expect to realize it for many 
years to come ; and those must be 3^ears of labor and 
study and patient expectation. 

SOME SUGGESTIONS ON THE MODE OF STUDYING LAW. 

It would be out of place for me to attempt to 
prescribe for you a routine of studies ; your learned 
and able professors are much more competent to do 
this than I am. But I may, without impropriety, 
make a suggestion or two as to the mode and manner 
of study which seem to me to be entitled to your 
consideration. 

Of course the matter and substance of your text 
books are to be fully mastered and impressed upon the 
memory. This is taken for granted. The best mode 



256 MISCELLANEOUS WRITINGS. 

of doing this undoubtedly is the constant use of the 
pen in making full abstracts, and often reviewing 
what is thus written, as well for the purpose of aid- 
ing the memory as for that of getting a clear view 
of the subject in all its relations. But what I would 
particularly impress upon you is the habit of master- 
ing the language and forms of expression of j^our 
author. In mathematics a mental conception of signs 
and diagrams is chiefly important in the acquisition 
of geometrical truth ; the exact language of the propo- 
sitions and demonstrations is not of vital import- 
ance. A mathematical professor will be satisfied with 
his student if he finds that he comprehends the math- 
ematical ideas, without scrutinizing his style of expres- 
sion. But it is not so in the law. Here it is not only 
necessary to know the rule, but to know how to express 
it in appropriate language. There is no science in which 
the words and forms of expression are more important 
than the law. Precision of definition and statement 
is a sine qua non. Possessing it, you possess the law ; 
not possessing it, you do not possess the law, but 
only the power of vainly beating the air with uncer- 
tain words which impress nobody, instruct nobody, 
convince nobody. In the law all the knowledge in the 
v^orld without the power of expressing it in apt 
formulas and correct diction, is useless to the possessor. 
This language may seem hyperbolical, but it is true. 
A lawyer without the power of clear and accurate 
expression is like a seventy-four gun ship grounded on 
a sand-bar, unwieldy, unmanageable, and the easy 
victim of any small craft of the enemy that happens 
to be abroad. I wnsh this sentence could be deeply 
lodged in your minds, to ^t : It is of the utmost 



LECTURE ON LAW. 2o < 

importance to a student of the laws to acquire 
besides a knowledge of the law itself, the power of 
expressing it in correct and appropriate language, 
such as is found in books of authority. For correct 
and appropriate diction is as necessary to the lawwcr 
as a knowledge of the law. 

Some men have a natural gift of recalling the exact 
language of the books they read and master. Their 
word memory is exceptional, sometimes almost mirac- 
ulous. But there are few -vidio are thus gifted, and to 
most persons it is a laborious task to store up in their 
minds the accurate terms, phrases and definitions of 
the law. The treasure to be secured, however, is 
worthy of the greatest pains. 

Perhaps one of the best aids to the accomplishment 
of w^hich I speak is to choose some author of pure 
and accurate diction, and make his -works a vade 
inecum, until you have become so familiar with its 
contents that, although not absolutely committed to 
memorj^, the words and forms of expression Avill 
spontaneously suggest themselves \vhenever you begin 
to speak or vrrite on the subject. Of course, there 
can be no doubt what book should be chosen for 
this purpose. There is nothing to compare \vith the 
Commentaries of Sir William Blackstone in complete- 
ness of scope, purit^y^ and elegance of diction, and 
appositeness, if not always absolute accuracy, of 
definition and statement. One of the greatest, if not 
the greatest of forensic speakers, as vv^ell as lawwers, 
that I ever knew, was the late Mr. George Wood, of 
New York — in his early days a leader of the Bar of 
New Jersey. His discourse to the Court was always 
grave, dignified and commanding ; his diction \vas 



258 MISCELLANEOUS WRITINGS. 

chaste and pure, and his style was rich in correct 
legal phraseologv ; so that he seemed, w^hen speaking, 
to be the personification of the law itself. He made 
no gestures, and but few references to authorities ; he 
did not need authorities ; you knew, as he spoke, that 
what he spoke was the law. All was reduced to such 
plain and simple principles, and enforced with such 
logical cleamess^of argument, in the chastest as well 
as the richest and most appropriate legal diction, 
that he compelled the closest attention and carried 
conviction along with him to the end. I have often 
hung /Upon his lips with chained attention, even 
when' opposed to him in the case, and can truly 
say that I never enjoyed a greater intellectual treat 
than in listening to his arguments. Now, I happen 
to have heard from one of Mr. Wood's contemporaries 
an account of the method which he pursued for 
acquiring his wonderful command of choice juridical 
diction. 

It was his custom for many years, in the earlier part 
of his professional life, when not overburthened with 
business, to read a chapter of Blackstone of a morn- 
ing and then to take a long walk, and repeat to him- 
self all that he could remember of what he had read, 
even to the very w^ords and phrases in those parts 
that were important, such as definitions and the like. 
If not satisfied with the first trial, he would repeat 
the process on the succeeding day, and in this manner, 
chapter after chapter, he went through the commen- 
taries, until they v^ere so perfectly mastered, both in 
matter and form, that he became almost a walking 
commentary himself. 

His case illustrates the oft repeated injunction, to 



LECTURE ON LAW. 259 

"Beware of the man of one book." This injunction 
is based on a truth of much importance to the profes- 
sional student. Perfect famiHarity, perfect mastery of 
any one good book is a mine of intellectual 'wealth 
not merely, not so much, for the matter which is thus 
made one's own, as for the vocabulary, the diction, 
the style and manner of expression which is mastered 
and indelibly fixed in the mind. How many pulpit 
orators, and even sectilar speakers, have become noted 
for their eloquence hj their familiarity with, and 
ready use of, the language of sacred scripture ! And 
when the one book mastered in this way is such a 
book as Blackstone's Commentaries, it is easy to com- 
prehend what power and beauty may be acquired and 
laid by for future use in the display of forensic elo- 
quence. 

This method of constant and repeated study of 
a, few good books, gives one also a firm grasp of the 
principles of the law, as well as of the forms of 
expression. The particular books are not essential, if 
they are good books, and by authors of original 
authority. Wlien a student at law I took up, out of 
the regular course, Gilbert on Evidence, the original 
edition, a small book, but full of principles and grounds 
of the law, after the manner of the great Chief Baron. 
I studied it carefully over and again, and I believe 
that I derived as much benefit from that little old book 
as from any I ever read, except, perhaps, Stephens on 
Pleading, which I studied in much the same manner. 
I conclude that it was not so much the particular 
books, as the manner of study, which produced a 
beneficial result. 

Another branch of reading, not comprised in the 



260 MISCELLANEOUS WRITINGS. 

regular course, and which is productive of the greatest 
benefit, is that of great leading cases in the reports — 
here and there one — like that of Twyne's Case and 
Shelley's Case, in Coke, Coggs v. Bernard, in Lord 
Raymond, Miller v. Race, in Burrow, etc., not forget- 
ting the great Constitutional cases decided in this 
country, in which Chief Justice Marshall delivered 
those profound opinions which have immortalized his 
name. The careful reading of a case — the \vliole of it — 
including the arguments of counsel, will enlarge one's 
knowledge of the lavv% strengthen the understanding 
and furnish a key to the methods of juridical discussion 
in the courts. 

THE STUDENT OF LAW MUST BECOME ACQUAINTED WITH 
THE STRUCTURE OF CIVIL SOCIETY, AND WITH HUMAN 
AFFAIRS AND BUSINESS. 

But if I have succeeded in ni}- object, I have im- 
pressed upon you the conviction that the law is not 
to be studied and learned like a dead language, in 
books only ; hixt that it is a living subject, embodied in 
and sustaining that civil societ}^ of which jou are 
members, and manifested in its organic form, and in 
the rules and regulations by which it is ordered and 
made harmonious and conducive to the greatest 
human happiness. 

All this may seem to be very common knowledge — 
almost home-spun truth. But home-spun truths often 
need to be impressed upon the attention. Their 
importance is frequently overlooked. One deduction 
to be drawn from the truth which I have endeavored 
to present is, the importance, to a student of law, of 



LECTURE ON LAW. 261 

having a knowledge of affairs, a knowledge of civil 
society, its constitution and doings ; a knowledge of 
what is taking place around him. He should know, 
as far as possible, the reason of everything. In other 
words, he should be wide awake, and, with open e^'^es, 
should watch this great drama of human life which 
is being acted in his presence ; and not go dreaming 
around, with his head down, dwelling only and always 
upon the metaphysical quiddities of the law. These 
quiddities may be very good in their place ; but the\'- 
should not be allowed to absorb the whole attention 
of the student, and entirely divert it from the fresh, 
green views presented by that living law which he is 
to apply to actual life around him, and which he can 
only understand in its true spirit by a wide and varied 
knowledge of that life as the material and ground 
work of civil society. Of what use will it be to him 
to know all about the British Constitution, for exam- 
ple, if he does not understand our own Constitution, 
Federal and State ? Of what use to know the organi- 
zation of the government and the courts of England, 
if he does not know that of our own government and 
courts ? Probably j^ou all know the number, the 
names and boundaries of the counties in your own 
State ; but do you know what are the officers of each 
county, and what are their powers ? Can you tell by 
what authority roads are laid out and bridges are built ? 
Can you tell by what authority a telegraph pole is 
erected in front of your door ? Are you acquainted 
with the powers of the Common Council of the city in 
which you live ? A man of ordinary good intelligence 
finds out many of these things without suspecting 
that he is learning something of the law. He picks 



262 MISCELLANEOUS WRITINGS. 

them up from the newspapers, from conversation, from 
everything that affords him information. He is wide 
awake to what is going on around him. His eyes are 
open. He takes in knowledge at every pore. So the 
law student should be. To put it in a homely manner, 
he should have " an inquiring mind." Ulpian, as before 
stated, says that jurisprudence is the knowledge of 
things human and divine, as well as the science of 
what is just and what is unjust. This is a broad 
definition, but it is suggestive. The lawyer ought, 
indeed, to know almost everything, for there is noth- 
ing in human affairs that he may not, some time or 
other, have to do with. At least, he ought to be 
acquainted with all those things which go to make up 
the form and body, the life and order of the society in 
which he Hves. He ought to know its civil institu- 
tions and their several functions. He ought to know- 
all those things about his countr\^ and his State which 
would enable him to speak intelligently of their insti- 
tutions, their policy, and their public proceedings. He 
ought to know how ordinary matters of business are 
transacted ; the forms and meaning of bonds, promis- 
sory notes, bills of exchange, bank checks, drafts, 
leases, releases, ordinary deeds, policies of insurance, 
agreements. He ought to interest himself to learn the 
actual methods of doing business, not only in private 
counting houses, in the market and in the exchange, but 
also in the halls of city, State and Federal legislation. A 
great mass of this sort of general knowledge and infor- 
mation can be acquired by one anxious to learn, without 
interfering with the general course of his studies ; and 
it will throw great light on his studies. It will often 
enable him to understand and apply them when other- 



LECTURE ON LAW. 263 

"wise their use and application would not be recognized. 
The sort of knowledge to which I refer is largely 
to be found in the statute-book, and that, however 
much despised, is a book which ought always to be 
within the student's reach. It should be his vade 
mecum, not to the exclusion of scientific text books, 
but as an adjunct and interpreter of them. The 
statute-book exhibits the actual institutions and regu- 
lations prevailing in the State at the present time. 

One of the advantages of studying law in the 
office of a practitioner is the acquisition, to some 
extent, of the kind of knowledge to which I have 
referred. The student is there broughtin contact with 
the business world, and the practical application of 
the law to actual cases. He copies deeds, agreements, 
documents of every kind, as well as legal papers, and 
is often charged with business transactions that 
increase his general knowledge. 

I do not underrate the study of law by scientific 
methods, as it is pursued in this and other schools. 
This method of study is of the greatest value. It 
makes scientific lawyers. It gives general and har- 
monious views of the law. It awakens an interest 
for its profound depths. But whilst the science is 
studied here, its application to the status, the exigen- 
cies and the wants of society may be learned, and 
best learned, by a study of the living subject itself— 
civil society — and the transactions that prevail in it ; 
everything that exists and every thing that passes 
about one in the social state. 

I have urged this view upon your attention because 
I have often seen young men settle down into mere 
book w^orms of the law, losing their interest in passing 



264 MISCELLANEOUS WRITINGS. 

events and what is going on around them, and thereby 
becoming unadapted to the active professional duties 
of the lawyer, which exhibit him in his most useful 
character, and bring him the richest rewards. 

THE lawyer's studies FIT HIM TO TAKE A LEADING 
PART IN THE STATE. 

These considerations lead us to another interesting 
view of our profession. The subject of the lawyer's 
studies necessarily makes him intimately acquainted 
with all the duties of the magistrate, as well as all 
the duties of the citizen ; with the rules of conduct that 
actually prevail, and with the wants and necessities 
of the body politic requiring any change or modifica- 
tion of these rules. Of course v^itli this species of 
study and training, no class of the community is so 
well qualified as the lawyer to take a leading part in 
the affairs of the community, in the making and in the 
administration of its laws, and in the execution of the 
powers of government. It is the legitimate and 
proper result of his studies and training. This is only 
true, however, v^hen the lawyer takes a broad and 
liberal view of his profession, and regards it, as it 
should be regarded, as ancillary to the promotion of 
justice and right amongst men, and the general good 
of the State. The merely technical pettifogger, the 
leguleius cautus, is more unfitted than other men to 
counsel and govern the State, because the narrow 
and incorrect views w^hich he takes of his profession 
rather lead him astray, to the promotion of mischiev- 
ous devices and expedients, than to wise and prudent 
measures. He knows both too much and too little ; 



LECTURE ON LAW. 265 

too much to be modest, prudent and conservative, too 
little to take wise and enlightened views. Hence it 
often happens, as the result of such unfortunate 
examples, that a popular jealousy and distrust of 
lawyers prevails in keeping them out of places of 
public trust. 

How important, therefore, it is to themselves as a 
class, as well as to society at large, that the students 
of justice and right, should be imbued with the prin- 
ciples of justice and right, so that the profession may 
take that high and noble position in the community 
-which, when it is faithful to itself, is its just preroga- 
tive. 

CONCLUSION. 

The few suggestions that I have made with regard 
to the range of inquiry desirable in the study of law 
must not be taken as complete. In a single lecture 
I can only set forth a few things to be acquired or 
done that strike me as important, and that may not 
"be obvious to the student. There are, of course, 
many others which I cannot dwell upon, such as 
general history, the history of the law, legal biogra- 
phy, political philosophy, political economy, and many 
more, which the student must in time acquire, in order 
to become an accomplished lawyer. To sum up all in 
one w^ord, in order to be an accomplished lawyer, it 
is necessary, besides having a knowledge of the law, 
to be an accomplished man, graced with at least a 
general knowledge of history, of science, of philos- 
ophy, of the useful arts, of the modes of business, 
and of everything that concerns the well-being and 
intercourse of men in society. He ought to be a man 



266 MISCELLANEOUS WRITINGS. 

of large understanding ; he must be a man of large- 
acquirements and rich in general information ; for, he 
is a priest of the law, which is the bond and support 
of civil society, and which extends to and regulates 
every relation of one man to another in that society, 
and every transaction that takes place in it. 

Trained in such a profession, and having these 
acquirements, and two things more (which can never 
be omitted from the category of qualifications), incor- 
ruptible integrity and a high sense of honor, the true 
lawyer cannot but be the highest style of a man, fit 
for any position of trust, public or private ; one to 
-whom the communit}^ can look up as to a leader and 
guide ; fit to judge and to rule in the highest places of 
magistracy and government ; an honor to himself, an 
honor to his kind. 



Proceedings at the Organization 

OF THE 

UNITED STATES 

CIRCUIT COURT OF APPEALS 

FOR THE 

THIRD CIRCUIT, 

AT PHILADELPHIA, 

ON TUESDAY, JUNE 16, 1891, 
AT 12 o'clock, noox. 



The following Judges were on the bench : 

Mr. Justice Bradley, of the Supreme Court of the United States. 

Hon. Marcus W. Acheson, Judge of the United States Circuit Court 
fcr the Third Circuit. 

Hon. William Butler, Judge of the United States District Court for 
the Eastern District of Pennsylvania. 

Hon. Leonard E. Wales, Judge of the United States District Court 
for Dela\vare. 

Hon. Edward T. Green, Judge of the United States District Court for 
New Jersey. 

Hon. James H. Reed, Judge of the United States District Court for the 
Western District of Pennsylvania. 

A large number of the members of the Bar of the Circuit were present. 



MR. JUSTICE BRADLEY SPOKE AS FOLLOWS : 

This being the day appointed for the first meeting 
of the Circuit Court of Appeals, we have met for the 
purpose of organizing the Court. According to the 
Act of Congress, the Court is to consist of three 
Judges — the Associate Justice of the Supreme Court, 
together with a Circuit Court Judge and such District 
Judge as may be assigned for the purpose. 

We have agreed upon a general order, which I will 
read and which will be adopted by the Court. 



268 MISCELLANEOUS WRITINGS. 

" United States Circuit Court of Appeals for the 
Third Circuit, at the City of Philadelphia, this third 
Tuesday of June, 1891. 

"It is Ordered that, when it shall be necessary in 
order to make a full court that a District Judge should 
be assigned for that purpose, the District Judges of the 
Circuit shall be assigned in rotation according to the 
date of their commissions respectively, beginning at 
this present term with Hon. William Butler, the Judge 
oldest in commission ; and each Judge shall be assigned 
for an entire term ; and if at any time during the 
term, two District Judges shall be required, then the 
Judge next in order to the one already assigned shall 
be assigned for the purpose ; and so in like manner if 
three of such Judges shall be required ; and if any Judge 
assigned to sit in the Court shall be incompetent to 
sit in a particular case, the Court may assign any 
other District Judge to take his place for the hearing 
of such case, and the cases on the docket in which any 
Justice or Judge of the Court is incompetent to 
sit may be arranged in a separate docket, to be heard 
when the Court is properly constituted for the purpose. 
And if at any time, in consequence of the absence of 
any member of the Court, an additional Judge is 
required to make a full Court, the Court may assign 
and call in any District Judge to sit for the time being 
in place of the member so absent, 

" It IS Further Ordered, that there shall be two 
stated terras of this Court in each year, to commence 
and be held respectively on the third Tuesday of 
March and the third Tuesday of September, at the 
City of Philadelphia. 

" It IS Further Ordered that William V. William- 



U. S. CIRCUIT COURT OF APPEALS. 269 

son be, and he is hereby appointed the Clerk of this 
Court, and that Abram D. Harlan be, and he is hereby 
appointed the Marshal of this Court. 

"It is Further Ordered that the rules hereto 
annexed shall be the general rules of the Court." 

This order is agreed to by the other members of 
the Court, and will be recorded by the Clerk in the 
minutes. 

It is unnecessary for me to read the general rules 
adopted by the Court. They are modelled upon the 
rules of the Supreme Court of the United States, and 
will be changed should circumstances require. The name 
adopted for the Court is " The United States Circuit 
Court of Appeals for the Third Circuit." The terms 
have already been referred to, two terms a year to be 
held at this city. I may add that the law constitut- 
ing the Court authorizes it to be held at other places 
than Philadelphia, but this being a very compact circuit, 
and there being always inconveniences attending the 
removal of the minutes of the Court and in travelling 
about with the records to other places, it seemed to us 
best for the public interests, and quite as much for the 
public convenience, to have the Court always held 
here. 

There are two or three rules to vv^hich I will call 
your attention. One is of most interest to members 
of the Bar, and is as follows : "All attorneys and 
counsellors admitted to practice in the Supreme Court 
of the United States, or in any Circuit Court of the 
United States, shall become attorneys and counsellors 
of this Court on taking an oath or affirmation in the 
form prescribed by rule of the Supreme Court of the 
United States, and on subscribing to the rale, but no 



270 MISCELLANEOUS WRITINGS. 

fee shall be charged therefor, and all attorneys and 
counsellors of the Circuit Court of the United States 
for the Third Circuit shall be attorneys and counsellors 
of this Court without taking any further oath," 

Therefore the attorneys and counsellors of the 
Circuit Court may consider themselves as attorneys 
and counsellors of this Court. It would be a useless 
ceremony to require a further oath or affirmation 
from them. 

There are rules with regard to bills of exception. 
Of course, these will be in the hands of the attor- 
nsys and will be carefully examined by them. 

The rules which are here appended are adopted by 
the Court, and they will be recorded in the minutes. 

Mr. Justice Bradley then administered the oath to 
William V. Williamson, Clerk, and to Abram D. Har- 
lan, Marshal. 

Mr. Justice Bradley then spoke as follows : 

It must he conceded that the organization of this 
Court and similar Courts in the other circuits is a 
very important event in the history of the jurispru- 
dence of the United States. This Court is clothed 
by the statute creating it wath a large portion of the 
appellate jurisdiction heretofore exercised by the 
Supreme Court, and, in some cases, in fact, in the 
majority of cases, the decision of this Court is to be 
final, with the exception of the right of the Court 
to certify any questions of law to the Supreme 
Court for its instruction, and with the further excep- 
tion that if this Court does not make such certificate 
when it is applied to for it, the Supreme Court may 
issue a certiorari to this Court requiring causes to 
be certified to it for hearing on appeal. This last 



U. S. CIRCUIT COURT OF APPEALS. 271 

-power given to the Supreme Court will probably be 
a cause of considerable anxiety to that Court, for, 
in most of the cases where this Court shall refuse to 
grant a certificate, application will probably be made 
to the Supreme Court for a certiorari, unless by the 
consideration and fair judgment of counsel the multipli- 
cation of such applications is avoided. 

The cases in which the decision of this Court is 
to be final are, first, all the cases that arise under 
the State laws, that is to say, all the cases in which 
the jurisdiction of the Federal Court depends on the 
citizenship of the parties. In all such cases it is the 
State law that applies, and not the Federal law. 
Heretofore that department of the jurisdiction of the 
Supreme Court has been very extensive, and com- 
plaints have sometimes been made that the Supreme 
Court has not followed the line of decisions of the 
State Courts, which are generally the primary expo- 
nents of the State law. I think, however, that the 
Supreme Court has generally, if not always, mani- 
fested a strong desire to follow the lead of the State 
Courts with regard to State jurisprudence where it 
could do so without what appeared to it an obvious 
departure from sound law. The rule by which the 
Federal Courts are governed in this respect was 
attempted to be laid down by the Supreme Court 
in the case of Burgess v. Seligman, in which it wag 
held that where the local law had become settled 
by a reasonably uniform line of decisions, the Federal 
Courts would not, and indeed could not, depart from 
them, because it is their duty to administer the law 
as it is, and the law, w^hen it has become settled by a 
course of decisions in the State Courts, must be 



272 MISCELLANEOUS WRITINGS. 

accepted according to those decisions. But where the 
State Courts have not come to any definite conclusion 
upon a particular point of law, or where there have 
been vacillating decisions on the subject, the Federal 
Courts have felt it to be their duty and their preroga- 
tive to judge for themselves what the State law is, 
because the clause of the Constitution which extends 
the judicial power of the Federal Government to con- 
troversies between citizens of different States was 
intended to give them an impartial tribunal for the 
decision not only of the facts, but of the law ; and, 
therefore, it is the duty of the Federal Courts to 
judge for themselves wdiat the law is in all cases 
where they have jurisdiction by virtue of the divers 
citizenship of the parties, as well as in other cases. 

Now, this Cotirt will be the tribunal for the final 
determination of all such cases, unless questions arise 
which the Court may deem it right and proper to 
certify to the Supreme Court for its instruction ; and 
it wall undoubtedly be governed by the same principles 
which have been adopted and followed by that Court. 

The finality of the decisions of the Court is 
extended, also, to all cases arising under the patent 
laws, imder the revenue laws, under the criminal laws 
(that is to say, in cases of inferior crimes which cannot 
be carried directly to the Supreme Court), and in 
admiralty cases. These branches of jurisprudence 
embrace almost all the jurisdiction of the Court. Very 
little is left of the class of cases that will come to it 
which can be carried to the Supreme Court except by 
certificate or certiorari. 

Of course w^e cannot forecast the rules by which 
the Court will be governed in making such certificates^ 



U. S. CIRCUIT COURT OF APPEALS. 273 

but we can say that it ought to be cautious about 
making them, and counsel ought to be considerate in 
demanding them, for the Court must, in the end, 
depend very much upon the Bar for the manner in 
which justice shall be administered. 

I look upon this as a very important period in 
our history with regard to the administration of jus- 
tice in the Courts. When we see the turbulence that 
exists in some portions of the community, people tak- 
ing the law into their own hands and exercising what 
is called Lynch law, without reference to the Courts of 
Justice or to the Government of the countr}^ it is a sad 
spectacle to every man who has the good of the 
country at heart. Why is it ? Does it arise from the 
nature of our population or government, or does it 
arise from defects in the administration of justice by 
the Courts ? In my judgment, it is greatly due to the 
latter. If the laws were administered with firmness 
and promptness, there would not exist such a strong 
disposition on the part of the people to take the law 
into their own hands. There would be two reasons 
to prevent it ; their fear of the law against themselves 
for the unlawful act, and the fact that justice would 
be done by the Courts without their interference. 

How, then, can this evil be remedied by the Courts 
so far as it depends on their mode of administering 
justice ? There is only one way, and that is to be 
more firm and prompt in its administration. We have 
an example before us in the administration of justice 
in England by which we might well profit. There we 
do not see, as with us, such endless controversies 
raised out of a particular case and carried through all 
the Courts. This is not the fault of the Courts alone. 



274 MISCELLANEOUS WRITINGS. 

There is ground for condemning the Bar for insisting 
upon minute points and refusing to accept the decisions 
of the Courts of first instance, and seeking an appeal 
to the Court of last resort in every case on every 
trivial question. The Bar, in justice to itself, should 
seek reform in this regard. Could such a state of 
things exist in England ? Assuredly not. The bar- 
risters of England would feel a blush of shame to 
carry before the Courts of Appeal such cases as are 
constantly urged before the Courts of Appeal in this 
country. Why ? Because there is in them a love of 
justice created either by their education or their sur- 
roundings that makes them more regardful of the 
honor of the Court and their own. 

We can, if we please, through our Bar Associations 
and other influences, reform this evil, and it ought to 
be reformed. 

The Courts themselves are not free from blame in 
contributing to produce the evil complained of. They 
betray a w^ant of firmness and of loyalty to the 
demands of justice. In criminal cases they give w^ay 
too much to their sympathies. They partake too 
much of the feeling of the community, which, after a 
time, always sympathizes with the guilty instead of 
sympathizing with those who have been injured by 
them. And in civil cases there is often a want of 
conscientious performance of duty. It not infrequently 
happens that important cases are submitted without 
argument, or only formally argued, before an inferior 
Court, and formally decided by that Court, for the 
mere purpose of carrying them up to the Court of last 
resort. This is all wrong. It turns the Court of 
Appeal into a Court of original jurisdiction. It takes 



U. S. CIRCUIT COURT OF APPEALS. 275 

from the inferior Court that sense of responsibiUty 
which it ought to possess, and lowers it in the esti- 
mation of the Bar and the pubhc. Every Court 
ought to give to each case presented to it as full and 
as grave consideration as if no right of appeal existed. 
This wrould often, and should much oftener than it 
does, end the litigation ; and if an appeal is taken, it 
would give the Court of Appeal the benefit of a full 
consideration of the subject by the inferior Court. 

Perhaps in these remarks there is too great an 
appearance of what might be called judicial scolding, 
but it seems to me, and it has long seemed to me, that 
they are founded in truth. 

This Court and the other Courts of Appeal organized 
to-day are destined to exercise an important influence 
on the jurisprudence of the country ; for notwith- 
standing the occasional supervising influence which 
may be exercised by the Supreme Court, practicalh' 
these Circuit Courts of Appeal will be the courts of 
final resort in all cases of Federal jurisdiction, except 
those direatly appealable from the District and Circuit 
Courts directly to the Supreme Court. 

It will not probably be my lot to continue long in 
assisting to carry on the business of the Court, but 
I hope and believe that by the aid of an intelligent 
and honorable Bar, the Court will be a blessing to 
this community and to the country. 

I believe we have no business before us to-day, 
and when we adjourn we shall probabh' adjourn for 
the term. Any business required to be done during 
the vacation can be done by a single Justice or Judge. 

Hon, Wayne MacVeagh then spoke as follows : 

May it please your Honors : The Bar of this city, 



276 MISCELLANEOUS WRITINGS. 

and our brethren of other districts who are to be asso- 
ciated with us hereafter as practitioners at the Bar of 
this Court, felt that it was due to testify, at least 
by our presence if nothing more, the profound inter- 
est we feel in the Court which has just been organ- 
ized and the expectation of great good which 
we cherish from its future history. No assurance 
of mine of the extent of the interest of the Phil- 
adelphia Bar in the organization of the Court 
w^hich has just taken place could equal the assurance 
given by this very large and representative assembly 
of its members. And I know I speak for every one 
of them in saying that they have been thrice repaid for 
coming here if nothing else had been offered them 
but the privilege of listening to the remarks of the 
Associate Justice of the Supreme Court of the United 
States, who is, by law, the presiding officer of this 
Circuit Court of Apj)eals of the United States for 
the third Circuit. 

There has, indeed, been nothing in what he has said 
w^hich does not meet with the hearty approval of 
this Bar, I am sure, except one thing, and against 
that we enter our vigorous, our united, our earnest 
protest : that there shall be a long period yet in 
w^hich justice in this Circuit Court will be adminis- 
tered, by the favor of God, with his assistance. 

Your Honors may be sure that the Bar of Phil- 
adelphia has never for a single day since the organ- 
ization of the Federal Judiciary, been in the slightest 
danger of under\^aluing it. It began its life here. 
Some of its most illustrious members had previously 
given the benefit of their learning and character to 
this Bar. We have contributed to its distinction 



U. S. CIRCUIT COURT OF APPEAI.S. 277 

and honorable history ; and in all that long period 
of more than a hundred years there has never been an 
hour when a member of the Federal Judiciary con- 
nected with the administration of justice in this Circuit 
has not had, not only the respect, but the affectionate 
reverence of the members of the Philadelphia Bar ; and 
they quite agree with Mr. Justice Bradley in thinking 
that there never were days in the past more likely to 
ascertain and establish the ultimate value of the Fed- 
eral judicial system than the days of the immediate 
future. And we know very well that if justice is to 
be administered in America hereafter to the satisfaction 
of the great body of our fellow-men, it must be prompt 
and certain and pure, all within reasonable limits of 
human infirmity, and that in the securing of such 
promptness and certainty and purity, the Bench must 
almost entirely rel^^ upon the Bar; and, for one, I 
have no doubt that the Bar will answer the demand 
upon it in the future as it has answered it in the past. 
No doubt, in the hurry and turmoil of professional 
business, we have fallen away somewhat from our 
former high estate. We are more commercial and less 
judicial ; we are not quite up to the standard even of 
our own selves of thirty years ago ; but that is because 
in the great material development of a great and 
growing countr^^ standards not quite as worthy as 
the old ones have, to some extent, displaced them. 
That is only a passing phase of American historv, 
and wall disappear with other evils wdiich have marred 
our progress. As that phase disappears, the members 
of the Bar of America will be worthy of the illustri- 
ous names which gave such distinction to its past his- 
tory ; and, in the meantime, speaking for the Bar, 



278 MISCELLANEOUS WRITINGS. 

may I venture to suggest that there is one way in 
which the Bench can greatly help us to be more worthy 
of our opportunities and our traditions ? and that is 
by a little more endeavoring to recognize us as barris- 
ters, and a little less regarding us as attorneys only. 
If you would think of us a little more as we really 
are, your brothers, sworn to the same fealty to justice 
as you are, w^hose time is as valuable to us as yours 
can be to you, v^hose opportunities of knowing when 
and how justice can be properly administered are at 
least as great in any particular case which -we have 
studied long as yours can be hearing of it at the moment. 
If you will only consider that a lawyer is a sworn 
officer of justice and not likely to disregard his oath, 
and that, therefore, wdien we come before ^'ou, the 
humblest and the youngest, especially the humblest 
and the ^^oungest, v^e ask you to receive us upon the 
presumption that we will not waste a moment of 
your time or of our own ; that we will not trifle with 
any of the rights belonging to anybody else any more 
than we will willingly suffer our own to be betrayed ; 
and that in all ways we are your helpers as well as 
your brothers in the administration of justice. 

And, then, too, we must ask you occasionally to 
forget that you are upon the Bench, and to remember 
that you are living in America and at the close of the 
nineteenth century, with the telegraph, with the tele- 
phone, with all the innumerable activities of modem 
life pressing upon everybody, and, therefore, when no 
lawyer competent for important legal business can 
always be at your call. He wishes to be, but if in 
any important question he is competent to advise you, 
he owes his first allegiance to the Supreme Court of 



U. S. CIRCUIT COURT OF APPEALS. 279 

the United States ; he owes his second allegiance, in 
mj theory, to the Supreme Court of his own State ; 
and his third allegiance he owes, I admit, to the Cir- 
cuit Court of Appeals for the Third Circuit. Now, if 
you will recognize the order of these obligations, and 
if you will have patience with us, we will endeavor 
to be a little more worthy of your confidence and 
regard. 

I listened with great pleasure to what Mr. Justice 
Bradley said when contrasting the English Bar with 
ours ; but I could not help thinking while he was 
speaking, that a recent judicial experience in England 
could have no parallel here. We have no court of 
justice, which, if any man was on trial for his honor, 
could be changed into a pleasure ground, as was done 
there ; and no ladies, high born or otherwise, would 
be allowed to amuse themselves while a tragedy was 
being enacted which possibly was to doom many 
people to miser}^ and one to dishonor. And yet we 
have many things to learn here ; many changes we 
hope to make ; many improvements we hope to wit- 
ness. In them all we will never lose sight of the 
inexpressible debt of gratitude we owe to the Federal 
Judiciary, for to it we signally owe, in my judgment, 
and especially in the last tw^enty-five years of its his- 
tory, the final establishment of the true doctrine that 
the American Government is "an indestructible Union 
of indestructible States." That Court and this Court 
and our own State Courts will all, I trust, in the 
future as in the past, continue to teach the American 
people the one lesson they need always to gamer in 
their hearts— and that is, that the only liberty worth 
having is liberty regulated by law. 



280 MISCELLANEOUS WRITINGS. 

Hon. Anthony Higgins, Senator of the United 
States from Delaware, then spoke as follows : 

With submission to your Honors, I have been 
requested to saj^ a word on this interesting occasion 
on behalf of my brethren of the Bar of the District 
of Delaware, some of whom are here in person, to 
testify to that deep interest which all feel on this 
most important occasion, one which has been truly 
said by his Honor, Judge Bradley, to be an event of 
the first moment. 

It will not be out of place to recall a word of the 
history of the enactment of the statute under which 
this Court has been organized. As the bill passed the 
House of Representatives, it was structurall}^ different 
from its final shape. The Judiciary Committee of the 
Senate entertained profound differences of opinion as 
to the true form that the act should take, and it ended 
in being left substantially with Mr. Evarts and Mr. 
Hoar to determine what that should be, and especially 
to Mr. Evarts ; and the bill in the shape as they 
approved of it with the minor amendments was 
adopted by the Senate, and then through circum- 
stances that are measureably obscure and need not 
further be referred to, final action was postponed until 
a few daj^s before the end of the session, when the 
only possibility of the bill becoming an act rested in 
the adoption of the bill as it passed the Senate by the 
House, and in that form it was passed, and so it 
came about that this most important act received its 
final shape from the hands of one of the most emi- 
nent members of the American Bar. 

The action thus at last taken by the Government 
for the relief of the suitors in its Courts was in 



U. S. CIRCUIT COURT OF APPEALS. 281 

great measure due to the agitation of the subject 
by the American Bar Association, upon whose com- 
mittee were, among others, Mr. Francis Rawle, of 
Philadelphia, and Mr. George H. Bates, of Delaware ; 
and a large part of this honorable effort was made 
b}'- other members of the Bar of this Circuit, who 
were upon the committee in charge of it, and espec- 
ially, Hon. Henry Reed, and Mr. Samuel G. Thomp- 
son, of Philadelphia. 

The idea that impresses me most to day is that, 
during the judicial history of this country, the Supreme 
Court of the United States has discharged the great 
function of being the governor, the directing agency, 
in the final determination of the law on that wide 
scope of commercial and other questions, questions 
not of Constitutional law, which have now been 
taken from that jurisdiction and conferred upon the 
Circuit Courts of Appeal. The momentous considera- 
tion resting before the members of these Courts 
throughout the countr}^ is that this great function, 
this great discretion, this great power, is now vested 
with them very largely, subject, of course, to cases 
being carried by certificate to the Supreme Court either 
ujDon the initiative of the Circuit Court or by the order 
of the Supreme Court itself, but as that can only 
happen in a few cases in the substantial administra- 
tion of justice, this great power is now with this 
Court. 

As we look back over one hundred years, and in our 
imaginations bring up the day when the Supreme Court 
v^^as first organized, and then go along through these 
hundred j^ears and realize that the history of America, 
more than in the story of its politics, of its wars, of 



282 MISCELLANEOUS WRITINGS. 

its territorial aggrandizement, has been in the judicial 
evolution of its domestic and Constitutional law, we 
stand with reverence here to-day at the opening of this 
new chapter of our national and our judicial history^ 
and I can only speak for myself and my brethren of 
this Bar in our feeling of absolute confidence in the 
honor, in the capacity, and in the respect for the great 
traditions of the law, that we feel are held by the 
members of this Bench. 

Mr. Justice Bradley then adjourned the Court until 
the Third Tuesday of September. 



THOMAS HOBBES. 

Born at Melmesbury, April 5, 1588. Died Decem- 
ber, 1679, in his 92d ^-ear. 

I bought his works December, 1879. For his auto- 
biography in Latin, see Vol. I, Latin Works and 
'* Auctarium " tliereto by R. Blackboume, and an auto- 
biography in Latin verse. Also see Appleton's Ency- 
clopedia of Biography, Art. Hobbes, b}^ Professor 
Nichol, 1854, highly appreciative. 

Allibone's Diet, of Authors, where is a list of his 
works, and quotations from a catena of authors 
respecting Hobbes and his -v\^ritings. To Allibone, a 
free-thinker is like a red rag to a bull. 

Hobbes \vas acquainted with Lord Bacon, and 
assisted him, as Aubrey saj^s Hobbes told him, in 
taking down his notions, and turning some of his 
essaj^s into Latin. This must have been about 1620, 
when Bacon was Chancellor, and Hobbes 32 j^ears 
old. (Montague's Life of Bacon, Vol. I, p. 257. 
Note 3 I to life). 

Amongst his friends were also Ben Johnson, 
Ed-ward, Lord Cherbury, Lord Clarendon, Gallileo, 
Mersenne, Gassendi, Des Cartes, Selden, Harvey Chil- 
lingworth, Cowley, Chief Just. Vaughan, Sir W. Dave- 
nant, Sam Butler, Auth. A. Wood and Aubrey. 

When Bacon's sixtieth birthday was celebrated, 
22d Januan.^ 1620, at York House, Ben Johnson 
v^rote a poem on the occasion, and, no doubt, Hobbes 
was present. (Montague's Life of Bacon 259). Bacon 
must have been surrounded by a galaxy of young men 



284 MISCELLANEOUS WRITINGS. 

of genius. He liked to have Hobbes' assistance because 
he could understand him better than the others could. 
At 20, Hobbes, after graduating at Oxford, went as 
tutor and companion to the son of Wm. Cavendish, 
Lord Barkley, afterwards, Earl of Devonshire, and 
remained in the famil}^ for the greater part of his 
long life. He travelled in France and Italy in 1610 
with his pupil, and again in 1634 with his son. 

In 1640, after the action of the Long Parliament 
indicated the approach of the civil war, he returned to 
Paris and staid their imtil 1652, part of the time 
mathematical tutor to Charles II. He returned to 
England, however, in 1652, because Charles withdrew 
from him his protection on the appearance of the 
Leviathan. 

His life in the Devonshire family, when not engaged 
in the duties of tutor, was spent in study and philoso- 
phizing in the summer at their country seat, in winter, 
at their house in London. 

His principal works are : 

Translation of Thucydides, published 1628. 

De Cive, Paris, 164-2. 

De Natura Hominis, London, 1650. 

De Corpore, politico, London, 1650, English. 

Leviathan, London 1651. 

De Corpore, 1655. 

De Homine, 1657. 

Liberty and Necessit}^ 1654. 

Translations of Homer, 1674, 1675. 

Behemoth, 1679. 

And many pieces on Mathematics and Rational 
Philosophy. He was undoubtedly the most original 
thinker of England in his time. His style is perspic- 



ESSAYS AND HISTORICAL NOTES. 285 

■uous and free from ornamentation, exactly suited to 
philosophical disquisition. His notions are regarded 
as very heterodox, for he acknowledged no authority 
but reason. 



AGE OF EGYPTIAN CIVILIZATION. 

In the jxars 1851—185-4 Mr. Leonard Homer 
(brother of Francis Homer), under the patronage of 
the Royal Society of London, made a series of exca- 
vations across the valley of the Nile in the latitudes 
of Memphis and Heliopolis, to discover, if possible, 
the character and age of the alluvial deposit. He 
found that the base of the Colossal Statue of Rameses 
II, which was erected about B. C. 1360, was covered 
by nine feet four inches of the regular accumulation 
of alluvium, making for the average from B. C. 1360 
to A. D. 1854 (or 3,214 years) 3yo inches for each 
century. His excavations near the same spot showed 
that the deposit of mud below the base of the statue 
was 30 feet, and he found fragments of pottery, and 
other works of man, to the very bottom. This would 
indicate the presence of human civilization in the Nile 
valley for a period of 10,300 years before Rameses II, 
or 11,600 3^ears before the Christian era; for 30 feet 
contains 360 inches, and this divided by 3V^ inches 
gives 103 centuries. Homer's Report was published 
in the Transactions of the Royal Society for the year 
1858, pp. 53-92. The results are stated in Bunsen's 
"Egypt's Place in History," Vol. III. Preface, pp. 
xxiii, etc. 

(See also Baldwin's "Prehistoric Nations," 303). 



286 MISCELLANEOUS WRITINGS. 

Bunsen deduces the same result, as to the antiquity 
of the early inhabitants of Egj^pt from the form of 
the Egyptian language as compared with other lan- 
guages to which it is related. 

For a flippant review of Homer's report in connec- 
tion with Bunsen's "Egypt's Place in History," see 
Quarterly Review {or April, 1859 (Vol. CV, pp. 230- 
232, Amer. Ed.), and see Bunsen's repl}^ in Vol. Y of 
" Egypt's Place in History," p. 122. See also " Wil- 
kinson's Egypt," Vol. I, p. 8, note. 



MACAULAY. 



They say Macaulay was not a critic ; that he had 
great memory, but little of the reasoning faculty. Is 
not he the best critic who can analyze without rules ? 
Who sees through a thing, and reports its essence 
without taking it up by parts and pieces ? As Carl^de 
said of Miribeau, "A man not with logic spectacles, 
but with an eye"; or as Coleridge said of Wads- 
worth, " His soul seems to inhabit the universe like 
a palace, and to discover truth by intuition, rather 
than by deduction." 

The greatest critic of modern times was Lessing, 
whose logical faculty and power of analysis, as well 
as healthy, sound judgment, were of the highest order, 
and whose ideas have laid the foundation of the best 
modem criticism. 



ESSAYS AND HISTORICAL NOTES. 287 



HISTORY. 

Macaulay's "History' of England " from the acces- 
sion of James II (1685), which, in its unfinished state, 
as he left it, extends only to 1700, makes us wish that 
a complete history of England could have come from 
his hands. So far as he went, his work is so com- 
plete, so picturesque, so entertaining, and so instruc- 
tive, that it has all the charm of romance with all the 
accuracy of annals. A tolerably continuous history 
of England and portions of Europe may be made up 
from his reviews, written in a stjde equally animated, 
and perhaps, somewhat more rhetorical. I have made 
an arrangement of these so as to present in chrono- 
logical order the periods discussed, with the exception 
of one on the papal history, which may be regarded 
as an appendix to the rest. Some of the articles have 
relation to literature ; but they illustrate the periods 
to which they relate. Of course, this list does not 
contain all Macaulay's reviews, but only such as con- 
stitute monographs on important epochs or leading 
events in English History. 

Macaulay's historical articles in the Edinburgh 
Review. 

Review of " History," 

Hallam's Constitutional History of Eng 

land, .... 
Burleigh and His Times, 
Lord Bacon, 

Hampden (Memorials of H.), . 
Milton (Puritan and Cavalier), 
Cow^ley and Milton (Dialogue on the 

Rebellion), . . • Essays. 



Period. 


Written. 




1828 




Sept. 1828 


Elizabeth, 


Apl. 1832 


James I, 


July 1837 


Charles I, 


Dec. 1831 


Commonwealth, 


Aug. 1825 



Lord Chatham, . . . George II, 



288 MISCELLANEOUS WRITINGS. 

Period^ Written. 

Sir William Temple, . . Charles II, Oct. 1838 
Revolution of 1688, by Mcintosh. (Here 

read Macaulay's history itself). . James II, 1838 

The Spanish Succession, . . William III, Jan. 1833 

Addison. . . , * Anne, July, 1843 
Atterbury's Life (Encyclopedia Brit., 8th ed,) 

Horace Walpole, , . . George I, Oct. 1833 

July 1835 
Oct. 1844 

Frederick the Great, . , . George III, Apl. 1842 

Dr.Johnson(Bosweirs Life, by "Croker,") George III, Sept. 1831 
Dr. Johnson, Life in Encyclo. Brit., George III. 
Lord Clive (Establishment of Indian 

Empire), .... George III, Jan. 1840 

Warren Hastings (Enlargement of do.), George III, Oct. 1841 
William Pitt. Life (Ency. Brit., 8th Ed.), George III. 

Mirabeau. French Revolution, . George III, 1832 

Barere's Memoirs, . . . George III, Apl. 1844 

Madam D'Arblay, . . . George III, Jan. 1843 

Sir J. Mcintosh, . . . XIX Century, July 1835 

Lord Holland, . . . XIX Century, July 1841 

Leigh Hunt, .... XIX Century, Jan. 1841 

Ranke on the Popes, . . Appendix, Oct. 1840 

Whoever will read these articles, generally more 
interesting than a novel, keeping before him any com- 
mon outline School History of England, for the pur- 
pose of keeping right in dates, reigns and principal 
events, and personages, will master English Histoi-y 
in the most charming way, and will have such strik- 
ing pictures of those events stamped upon his mind, 
that he can never forget them. Of course, the formal 
work quoted at the head of this memorandum should 
also be read at the proper place, after reading the 
review on Sir James Mcintosh's History of the Revo- 
lution. 

I earnestly recommend this course to my children. 
To it should be added " Green's History of the Eng- 



ESSAYS AND HISTORICAL NOTES. 289 

lish people," and " Molesworth's History of England 
from 1830 to 1874." (Instead of Moleswortli, there is 
now a more entertaining book — McCarthy's History 
of Onr Own Times.) 

For American history, Hildreth's is the most com- 
plete, as to the time covered by it. After reading 
Hildreth, Bancroft's more elaborate work, as recently 
condensed in six volumes, should be read. Bancroft 
has taken infinite pains to be accurate, and has altered, 
added and corrected every successive edition. But 
his work only comes to the close of the Revolutionary 
war. (1882. It now embraces the History of the 
Constitution). 

For general history, I still adhere to Tytler; 
though he must be dull to a young person, and read 
as a task. However, I know of no other original 
work comparable to his. There is a pictorial " History 
of the World," in one large, thick volume, which is 
very ftiU and complete. 

Dr. Russell's Ancient and Modern Europe is very 
readable and useful. 

Of course, no person can claim to be intelligent 
without reading the great standard works on history 
which adorn English literature ; such as Hume, Rob- 
ertson and Gibbon. Clarendon and Burnet are com- 
plete as to the seventeenth centurv% Grote, Ferguson, 
Merivale on Greece and Rome, and Froude on Eliza- 
beth, and Allison on the French Revolution, among 
English writers, and Prescott, Motley and Irvmg 
among Americans ; with good translations of Hero- 
dotus, Thucydides, Polybius, Livy, Tacitus and Caesar 
among the Greeks and Romans ; and of Father Paul, 
Davilo, Sull}^, Voltaire and Thiers among the Italians 



290 MISCELLANEOUS WRITINGS. 

and French. Of course, this enumeration is very 
incomplete, and does not include many masterpieces 
which any one laying any claim to scholarship should 
read and master. 

(Note. — A good consecutive History of England, 
elegant and entertaining, will be found by reading 
successiveh', 1st, Hume ; 2d, Macaulay ; 3d, Stanhope 
(Anne), Mahon (1713-1783), McKnight and Mc- 
Carthy). 



CARLYLE'S "FRENCH REVOLUTION." 

Carlyle's " French Revolution," is wrongly entitled, 
"The French Revolution," a "History," it should 
have been entitled, " The French Revolution," a. 
"Poem"; not because it is a fiction, or a romance 
in the sense of fiction, but because its whole frame 
and cast and filling-in are poetical and nothing else. 
All it wants is the common poetical garb of verse 
to make it a complete poem in form as well as sub- 
stance. Look at that incomparable vision described 
in the fourth chapter of book IV, entitled " The Pro- 
cession of the States-General." Is there anything 
more poetic in Homer or Virgil ? 



LELAND ON THE GYPSIES. 

September 12, 1878. 

I have just read Leland's " English Gypsies and 

Their Language," and his article in the Edinburgh 

Review on the same subject. He is about to publish 

a vocabulary. His conclusions are, that the Gypsies 



ESSAYS AND HISTORICAL NOTES. 291 

■were originally pariahs of the Natt and Dom tribes in 
the West of India, who w^ere encouraged to emigrate 
to Persia to furnish amusements to the people, and 
w^ho, being expelled thence for their thieving propensi- 
ties, moved westward through Armenia, Syria, Asia 
Minor, Greece and Hungary, to Western Europe. 
Here they first appeared in the Hanse Towns A. D. 
1417. Their language shows traces of the countries 
through which they passed, though its groundwork is 
"" Hindustani," or an old cognate dialect coming from 
the ' ' Sanskrit. ' ' Many words are pure ' ' Sanskrit, ' ' and 
"they still retain many customs, notions, proverbs and 
sayings that betray "Sanskrit" or "Hindu" origin. 
The names " Rom " and "Romany," by which they 
call themselves, Mr. L. thinks, are derived from " Dom," 
" Dommany," being a mere corruption of pronuncia- 
tion, common among them. They call Europeans 
"" Gorgios," which may be a corruption of " Georgi"; 
the first Christians, perhaps, v.diom they met in their 
progress w^estward. And is not their custom of 
eating the flesh of animals, which have died a natural 
•death, derived from the institutes of Buddhism, by 
which the killing of animals is forbidden. Driven to 
great straits for food, may they not have comprom- 
ised with a principle inherited from of old and deemed 
it advisable to eat the flesh which had not been killed, 
but had died from natural causes ? Subsequent inter- 
course with other nations, it is true, ma}^ have caused 
them to forget the original institute, and to eat meat 
liowever killed ; but the remaining custom of eating 
the flesh of animals, dying a natural death, may be 
indicative of experiences through which they had 
-passed. 



292 MISCELLANEOUS WRITINGS. 

STOWE. 

The first settlement in Stowe, Vt., was made by 
Oliver Luce, April 16, 1794, a mile north of the vil- 
lage, on the w^est side of the road leading to Morris- 
ville, a little south of the fork made hj the road 
that leads to Morrisville and that which continues 
northerly. 

Oliver Luce was bom in Martha's Vineyard, July 5, 
1765, and died at Stowe, December 2, 1852. His 
monument w^as erected by the town over his grave 
in the old burying ground. His wife, Susannah, lies 
buried by his side. She was born at Plainfield, N. H., 
March 29, 1764, and died August 9, 1826. Their son 
was the first child born in Sto^ve. Joseph Fuller, now 
(1875) 82 years old, residing at Stowe Hollow, 
informs me that he came to Stowe 1809, twelve years 
of age. At that time there were only three houses in 
the village, viz.: a log house at the comer, opposite 
Squire Butler's, a frame house opposite the hotel, and 
one further down near the Methodist Church. Four 
farm lots, of one hundred acres each, originally centered 
at a common * 1 1 point about thirty feet west of the 
hotel, thus 



3 2 1 and 2 belonsred to Dr. Thomas 



B. Downer ; 3, toWilliam Utley ; 4, to Nathaniel Russell. 
Dr. D.'s montmient states that he was bom at Coventry, 
Conn., in 1773, and died at Stowe, 1851. His lots em- 
braced the Butler cottage and Sunset Rock, which was 
called Dr. Downer's ledge. He practised physic at Stowe 
to the close of his life. When Fuller first came to the 
place (1809) the grist mill was owned by Asa Ray- 
mond, wdio built it. His tombstone states that he 
was born at Middlebury, Mass., in 1772, and died in 



ESSAYS AND HISTORICAL NOTES. 2S3 

1843. Several of the early settlers came from that 
place. Ra^^mond bought out Caleb George, who built 
the first mill in the lower village, near where Pike's 
saw-mill now stands. Lemuel Thomas had built and 
was running the carding and fulling mill in the lower 
village. Fuller says Capt. Robinson (now 90 years 
old) came to Stowe before he did. Mrs. Raymond 
tells me that Asahel Raymond, a cousin of Asa, built 
the old hotel, near the present hotel, which still forms 
one of the back buildings ; and that the present hotel 
was built in 1863, an addition being made in 1874- or 
1875. Asahel's sons conducted it a while after his 
death, and then sold out to the Mount Mansfield 
Hotel Co., got up by Bingham and others. A man 
by the name of Peter C. Lovejoy built the brick 
hotel below (now owned by the compan^O) v^^hich was 
afterwards purchased by a Mr. Churchill and converted 
into a tavern. Churchill formed the design of a road 
to the top of the mountain, and an auxiliary hotel 
there, and commenced the work, but, failing in busi- 
ness, his property was sold under mortgage and pur- 
chased by the Mt. Mansfield Hotel Compan3\ She 
says that Bingham (W. H. H.) was brought up by 
Asa Raymond and studied law with Mr. Butler and 
became Ravmond's executor, who left half of his estate 
to the Methodist Church, the other half to his wife's 
relations. Airs. Raymond's husband was a nephew, 
and son of William Raymond. Asa left no children. 
Bingham's mother and Mrs. Bingham's mother (she 
was Alice Camp) v^ere sisters of Capt. Robinson. 



294 MISCELLANEOUS WRITINGS. 

HISTORY OF WASHINGTON PARK, NEWARK, N.J. 

The mistake made bj those who claim Washington 
Park for a market place is in supposing that it was 
a gift from the Proprietors to the town. It was no 
such thing. The patent of December 10, 1696, grant- 
ing to the town the "training place," the "market 
place," the " w^atering place," the " burying ground," 
the "parsonage lands" and "all the streets of the 
town," w^as dated thirty years after the settlement of 
the town, and after all these portions of land had been, 
laid out and set apart by the town people themselves. 
The Ne-wark settlers l^ought the land from the Indians 
with the license of the Proprietors, and laid out the 
city and outlands to suit themselves. After they had 
been several years in possession, the Proprietors set 
up a claim to quit-rents, and denied that the people 
had any title. The controversy lasted a long time 
and with great acrimom^ Finally, the people, one 
by one, in order to have no doubt resting on the 
title of their lands, began to take patents (no quit- 
rents, however), and as this w^as an admission, in form, 
that the title must emanate from the Proprietors, the 
latter w^ere satisfied to get out of the scrape in that 
-way. Near the end of the century, it was also 
thought best to have a sweeping patent for the general 
balance of land that belonged to nobody in particu- 
lar ; and hence the patent of 1696 to trustees named 
by the town. 

This historical review evinces this fact ; that the 
common lands (embraced in the patent) belonged, in 
truth, to the town, as much after as before, and as 
much before as after, the grant, and, when not affect- 



ESSAYS AND HISTORICAL NOTES. 295 

ing private rights, such as adjacency to streets and 
highways, the town could dispose of them for such 
purposes as it saw fit. The action of the town has 
always been in accordance with this view. The 
watering place which lay on the south side of 
Market street between Harrison street and the 
foot of the hill, and extending nearly to William 
street, but somewhat gore shaped, being no longer 
needed for its original use, was left out and finally 
sold to the tanners of the town for the location 
of the tanneries ; and in that way has contrib- 
uted immensely to the prosperity of the town. The 
burying-ground, not being all needed for that purpose, 
and the north-east corner being a pond, or marsh, 
and unsuitable for it, the town and church let out 
lots around the margin, which greatly benefited the 
appearance of that part of the town, multiplied busi- 
ness facilities, and contributed to the public finances ; 
without any public detriment. The court-house and 
jail were erected on lots granted to the county along 
Broad street, south of the old church, which stood 
about where the engine-house now is, and neat and 
tasteful stores were erected between the meeting-house 
and Market street. Nobody was injured ; the town 
was benefited ; the public good was furthered. Then 
the training place, being no longer wanted for that 
use, as there -were hundreds of places in the vicinity 
much better fitted for it, was converted into a public 
park, and planted with the beautiful trees that adorn 
it ; first, those grand old elms were planted about the 
beginning of the present century, and the interior 
trees were set out in 1838, many of them being 
brought from Prince's nurserj^, on Long Island, and 



296 MISCELLANEOUS WRITINGS. 

finally, the park was enclosed with an iron fence. No- 
body has been injured by it; everybody has been 
benefited ; the beauty of the city and the public good 
of the town have been subserved. And as the land 
really belonged to the city, that is, to the town people 
in common, no man, no court, had a right to interfere 
with this modified use of it, deleterious to no one, and 
more subservient to the public interest. The Chan- 
cellor would be very prettily engaged, to be sure, in 
ordering the fence and all the trees to be taken away, 
and Trinity Church, too, in order that companies of 
soldiers could have a little better room for evolutions ! 
Then, again, the market place, Washington Park, v/as 
deemed to be of more use to the health and beauty of 
the city by making a public park of it, than by using 
it for a market. It never has been used for a market 
for now two hundred and twenty years. The first 
market that was built for the town was not built on 
Washington Park, but in Market street, on the margin 
of the burying-ground, in a low spot where no graves 
could be dug. It was the only market that the town 
had for many years. It had a hall above in which 
meetings were held, and when the old court-house at 
the corner of Broad and Walnut streets was burnt, the 
courts were held in the upjDcr part of the old market- 
house. They were held there in 1835, 1836 and 1837, 
whilst the present court-house was being built. When 
this old market became too small, what next ? Did 
the city authorities (the collective representatives of 
all the town's people) go uptown and take Washington 
Park for a market place ? No. They purchased the 
present site over the Morris Canal because it was 
more central and more convenient to the people, and 



ESSAYS AND HISTORICAL NOTES. 297 

because Wasliington Park had been converted into, or 
rather, had never been used for anything else than a 
pubHc park, and property had been purchased and 
residences built around it on the faith of that appro- 
priation. An Academy ("a fine two-story stone 
building") was erected on it in 1774, which was 
burnt and destroyed as far as it could be,, by the 
British and Tories in their savage raid of January 25, 
1780. From that time to this the planting of trees, 
the erection of fences, the laying of walks have been in 
accord with the actual uninterrupted appropriation of 
this ground to the uses of a public ornamental park, 
during the entire history of the town. The courts, or 
the City Council itself, would have no more right, nov^, 
to deface it, and convert it into a market place, than 
they would to sweep away all trees and structures 
from Military Common, or from the Watering Place. 
And why ? Simply because, upon the faith of the acts 
and conduct of the town for over two hundred years, 
rights have grown up w^hich cannot be disregarded 
and overthrown. The plea that these acts and con- 
duct are in violation of the Patent of 1696 has been 
already considered. It is based on a false idea, namely, 
that the public lands, commons and streets of Newark 
were the free donation of the Proprietors ; whereas 
historic truth is different, and shows that this common 
property belongs to the town's people themselves, to 
be disposed of by them for the public good as they 
deem best, and not to the private injury of the citizens. 
This is the sound, sensible view of the subject, and 
law is never found, in the end, to be at war with 
sound sense and reason. 



298 MISCELLANEOUS WRITINGS. 

TRUTH. 

1. Statement of truth is brief. Demonstration of 
truth is long. Confutation of error is both long and 
arduous. 

2. The masters of philosophy, those who propound 
the great thoughts on which human conduct hinges, 
are never prolix, never discursive. They are usually 
sententious, epigrammatic, delivering their lessons in 
aphorisms, proverbs or parables. They see truth so 
clearly, and value it so highly, that their principal 
anxiety is to announce it, and impress it upon man- 
kind. They have not the time or patience to stop 
and argue. 

3. The most solemn and profound truth that 
man can utter, and which has the greatest influence 
on his life, is expressed in four Avords. There is a God. 

4. All the great lessons of life may be compre- 
hended in a few simple propositions, understood by the 
simple, whilst the wise are lost in the maze of their 
own discussions. 

5. The true office of discussion is to clear away 
error and establish truth. 

6. Truth is simply that which is ; error is the 
affirmation, or belief, of that w^hich is not. 

7. That which is may be either an existence, or 
an event. The former continues ; the latter happens 
and is ended, becoming a thing of the past. 

8. But existences, as well as events, may belong 
to the past, the present, or the future ; to the natural, 
or to the spiritual (or moral) world. 

9. He who sees through the phenomena of being 
most clearly, and appreciates that -which is most sub- 
stantial and enduring, most essential and important, 
has the clearest view of Truth. 



ESSAYS AND HISTORICAL NOTES. 299 

VARIETY OP INTELLECTUAL CAPACITIES. 

There is nothing more true than that to different 
persons the same words suggest different ideas. 
Words are used by men of all descriptions, characters 
and habits of association, and the peculiar circum- 
stances of each man go to stamp the complexion 
of the ideas he attaches to words. Men of genius^ 
who have many more ideas than other men, yet hav- 
ing only the same words to convey'- them, or represent 
them which they have, must necessariW attach many 
more ideas to the same term than others do. Some 
of these ideas are perhaps so evanescent and refined 
that other men are incapable of comprehending them. 
It is the prerogative of the man of enlarged capacity 
and ready wit, to comprehend and enjoy the most 
delicate and refined touches of sentiment, which the 
writings of genius contain, as well as the more gross 
and obvious conceptions of ordinary men. 

There is, perhaps, not so much difference between 
educated minds as is generally estimated. A peculiar 
kind of talent or tact is required to succeed in the 
accumulation of wealth, honor and power. Not an 
extraordinary share of mind. Yet the possession of 
one or other of these external accidents is one of 
the commonest principles from which the world judges 
of the extent of a man's capacities. The truth is that 
every educated mind contains, in itself, a world of 
wondrous powers and capacities. The principles and 
springs of humanity, possessed in common by enlight- 
ened men, are in themselves an ocean, compared with 
which the differences between them dwindle into insig- 
nificance. Like the arms and inlets of the sea, which 



300 MISCELLANEOUS WRITINGS. 

compared with eacli other may seem to present wide 
disparities, but each, in turn, claims to be connected 
with, and but a part of the boundless main. So with 
the dififerences between men. They may seem great, 
until we reflect that each is connected with the ocean 
depths of a common humanity, which, all alike, enjoy. 
The Andean summits do not all peer above the obscur- 
ations of clouds and storms, but all rise far beyond 
the reach of animate nature. There is so much to 
admire and venerate in the resources of every immortal 
spirit that I dare not speak disparaging of any. 
The humblest son of science has so much in common 
with the most successful suitor of renown, that I dare 
not speak of the difference between them as worthy of 
comparison with the vastness of the mental capacities 
and resources of either. 



WILL: SELF-CONTROL. 

It is said by some philosophers that " the will is 
the many It is this that determines our actions. 
Our actions determine our characters and destinies. 
What we are is answered by what we do. This dis- 
tinguishes men from each other, the wnse and prudent 
from the unwise and volatile — this distinguishes men 
from brutes. 

The highest office of the will is self-control. Brutes 
are governed by their appetites and impulses. Sav- 
ages are but little removed in this respect from brutes. 
Brutish men and coarse natures are mostly led by 
their impulses, appetites and passions. The true 
nobility of our nature is evinced by self-control, which 
restrains, governs and subdues the impulses, appetites, 
passions and desires. 



ESSAYS AND HISTORICAL NOTES, 301 

Self-control, under the names ^^Eykpa/eia^' and 
"^Gocppoffvyy^' in Greek and Temperentia, Continentia, 
Modestla in Latin, is ranked as one of the four cardi- 
nal virtues. Justice, Temperance, Courage and Forti- 
tude. Of these the parent virtue is temperance, or 
self-control. 

He that best controls himself in all things is most 
noble and God-like. " He that is slow to anger is 
better than the mighty, and he that ruleth his spirit 
than he that taketh a city." (Pro. 16: 32). "He 
that hath no rule over his own spirit is like a city 
that is broken down and without walls." (Pro. 
25: 28). 



EXPERIENCE, OR SELF-IMPROVEMENT. 

It is the duty and high privilege of every human 
being to endeavor to improve himself. Effort at self- 
improvement is the definition sometimes given for 
religion. It may relate to our actions or to our con- 
victions. In our actions we should aim at goodness ; 
in our convictions, at truth. (This is the essence of 
the teachings of Confucius). 

One of the best means of arriving at just conclu- 
sions, or truth, is to record our best thoughts. By 
clothing them in words we make them more precise, 
determined and fixed. For this purpose it is a good 
plan to keep a set of books somewhat analogous 
to the Journal, Day Book and Ledger of the trades- 
man. The Journal should be always at hand for 
recording the first rough form of our thoughts, 
including the suggestions, reasons and conclusions 



302 MISCELLANEOUS WRITINGS. 

which occur to our minds on any subject in w^iich we 
take an interest, which may thus be caught and 
secured whilst fresh and before they are dissipated 
and forgotten, and perhaps forever lost. In certain 
moods and frames of mind we have glimpses of 
truth, w^hich, followed out, may lead us to interest- 
ing conclusions, but which, once displaced by other 
things, can never again be recalled — at least, not 
with the same vividness and strength. The second 
book, analogous to the Day Book, is to be used 
for copying out, with abridgements or improvements, 
such of the rough entries in the Journal as, on subse- 
quent reflection, seem to be worthy of the labor, col- 
lecting together under a single head all the observations 
which we have made on one subject. The third 
book, analogous to the Ledger, should be employed 
for a last and final recording, in the most accurate 
and finished form, of the thoughts and conclusions at 
which we ultimately arrive on a given subject or 
point, after having read and re-read the previous 
entries, and sought such other information and light 
from books and men as our opportunities have per- 
mitted. 

By proceeding in this manner, and drawing the 
pen across the entries in the Journal and Day Book 
respectively as fast as they are used and carried for- 
ward into the succeeding book, a man of ordinary 
reading and reflection v^ill, in the course of a few 
years, find that he has amassed a rich fund of exper- 
ience, which, to him at least, \vill be of inestimable 
value. The result v^ill be as near an approach to wis- 
dom and truth as his opportunities and talents are 
capable of. 



ESSAYS AND HISTORICAL NOTES. 303 

PRINCIPLES SHOULD BE FIXED. 

When a young man arrives at the age of twenty 
he looks around him in the wide world and discovers 
that opinions, sentiments and principles of action 
are very various and different. With respect to each 
subject presented to his consideration, and each course 
of conduct offered to his choice, he can take but one 
course, or else he must remain in a wavering, undecided 
state. Indecision is the bane of healthy conduct. 
Hence it behooves every one to choose some particular 
course to pursue with regard to his opmions and sys- 
tems of conduct as they individually present them- 
selves. And, if, by further investigation, he finds that 
he has adopted the wrong course, let him choose the 
right one. In order to make a proper choice of the 
«tand which he will take, much research and reflection 
will be necessary. Let him, therefore, examine one 
subject at a time, and having made his decision 
respecting that, let him go on to the consideration of 
something else. 

For example, let him investigate the subject of 
Slavery and its influence upon our country, etc., until 
by a careful comparison of the arguments that each 
sect and party on the subject of Slavery bring forward, 
he is able to decide according to the merits of the 
case what ought to be done in relation to Slaverv. 
Then, having once satisfied himself, he will always be 
ready with a reason for the opinions, to urge upon 
those M^ho may differ from him, and if he is ever called 
upon to act in relation to the subject, he will know 
how to act, and will not act blindly. Truth and 
utility combined ought to be the object for which we 



304 MISCELLANEOUS WRITINGS. 

seek in every investigation. Many have an opinion 
respecting such subjects, but do not knov^ hov^ they 
came by it — possibly their father or friends think 
so— and, therefore, they think so also ; possibly their 
own interest is concerned and biased their judgment ; 
possibly they have latent prejudices that decide them, 
but whatever it be, unless they have carefully investi- 
gated and impartially judged the subject, they are not 
fitted to converse on it in promiscuous society, nor are 
they safe in adopting the conduct which their opinions 
shall at any time dictate. 

After having examined and disposed of one subject. 
let him proceed with another, until the more important 
of those which are agitated in the society, of which he 
is a member have been canvassed by him. 

He will generally be able to find materials and facts 
to guide his investigations in the publications that 
the subject elicit and in the perusal of history. With 
these data and sound sense for his guides, he will gen- 
erally deviate very little from the road to truth, safety 
and ultimate honor. (October 17, 1835). 

P. S. — I might add a list of subjects on v^^hich a 
young man would do well to decide in the present 
times. Some follow Abolitionism, Colonization, Con- 
solidation in Policy, Democracy, Intemperance, Benev- 
olent Associations individually. Methods of Education, 
Religious equality. Extension of Liberty of the Press, 
Utility of Monopolizing Associations, Lotteries, etc., 
etc. 



ESSAYS AND HISTORICAL NOTES. 305 



FAMILY HAPPINESS. 

How mucli the happiness of Hfe depends on refine- 
ment in taste, and the cultivation of those aecomphsh- 
ments which gives a charm to the domestic circle ! If I 
wished to depict a happy family, I would describe it 
as one, not only in which general intelligence and 
virtue prevails, but in which the arts of taste are suffi- 
ciently cultivated to be appreciated and enjoyed ; in 
Vvdiieh vocal and instrumental music are practised, and 
conversation is varied by narration and discussion, 
and ever improves in expression and tone ; in which 
poetr}', painting, sculpture and architecture are sub- 
jects of intelligent study and comment ; in which the 
courtesies and amenities of life are never forgotten, 
and religion and morality are never slightingly men- 
tioned, and in which affection, mutual forebearance and 
gentleness form the habitual atmosphere. How can 
an\^thing bad or deformed come from such a source ? 
It is the seat and fountain of social order and good- 
ness ; of noble character and honorable achievement , 

(1875). 



HOME, DEFINED. 

The English word " Home " cannot be fully defined 
by a single word or phrase. The following is an 
attempt at a definition made forty j^ears ago, which I 
find on the fly leaf of one of my old h\'mn books. 



306 MISCELLANEOUS WRITINGS. 

Home, the house and place where a family perma- 
nently dwells ; where they bring together the comforts 
they can command, and where their family attachments 
and memories center. 

The language is not precisely accurate, and may be 
modified thus : 

Home, the house where a family permanently 
dwells, collects its comforts, and forms its attachments 
and memories, 

November 14, 1876. 



HAPPINESS. 



Happiness is the result of the harmony of all the 
faculties in their co-existence and operation. It is thus 
in the animal ; it is thus also in the moral nature of 
man. Discord in the operation of the animal functions 
produces pain ; in the moral, dissatisfaction, mental 
uneasiness — greater or less in proportion to the disor- 
der that prevails. Perfect health is the f)erfection of 
animal nature, and the basis of the greatest physical 
enjoyment. Perfect harmony of the mental faculties 
produces contentment, peace of mind, happiness. In 
this the whole moral nature must combine — the intel- 
lect, the affections and passions, and the conscience. 
If either is disturbed, the man is disturbed. As in the 
body, if every organ is perfect, except the heart, and 
tliat is disordered, the whole system suffers. So in 
the soul. If every part is in perfect activity except 
one of the passions, and that is disturbed by undue 
excitement or improper exercise, the whole man is dis- 
tressed and unhappy. 



ESSAYS AND HISTORICAL NOTES. 307 

The principle is universal and invariable in its 
application. Like gravity in the physical world, 
wdiicli pervades the universe, and is always felt and 
only felt when resisted. 

A man is most happy when he is most perfect, and 
he is most perfect when all his faculties are propor- 
tionately and harmoniously developed. Thus devel- 
oped, nature and art and society supply him \vith a 
thousand sources of enjoyment. Neither his taste nor 
his moral feelings, any more than his intellectual fac- 
ulties, can be neglected wathout detriment, and with- 
out diminishing his enjoyment of existence. The ear 
should be tuned to harmony, the eye educated to the 
perception of beauty and grace, and the heart instructed 
in the precepts of duty and religion ; and these should 
all be graduated and correlated to each other. With 
a body well developed and trained to healthy exercise 
and agreeable recreations, a mind cultivated and 
stored with useful and various knowledge, an educated 
taste and a heart formed to love and follow all that 
is good and generous and exalted, the result is physi- 
cal and moral health, and the purest and most perfect 
happiness which the earth affords. 

The acquisition of an accurate and easy conversa- 
tion, of some skill in music, and in pure and healthful 
diversions, are of great benefit in fitting one for social 
intercourse, in which one of the greatest sources of 
pleasure is found. 

The active and cheerful performance of every duty, 
the assumption and discharge of every proper relation 
in life, are also necessar}- to the perfection of the man. 

Such a man brings with him and spreads around 



308 MISCELLANEOUS WRITINGS. 

him, wherever he goes, a glow of cheerfulness and 
welcome, and the production of happiness in others 
reacts in multiplying his own. 

His home should be the center of this beneficent 
influence, and from thence it should spread to every 
portion of the society in which he is known, and which 
forms the sphere of his activities. 

February 11, 1877. 



TIME. 

The immense importance of time in all human 
affairs and human experience can never be fully appre- 
ciated. One man, by order and diligence, may almost 
be said to command time and become its master. 
Another, by negligence and procrastination, becomes 
time's slave, and finds his affairs in confusion, his 
opportunities lost and his purposes unaccomplished. 
The former leads fortune by the hand, and partakes 
her choicest favors. The latter, with weary steps and 
flagging spirits, finds himself far in the rear of for- 
tune, and the victim of discouragement or despair. 
This is one instance of the importance of time. 

But it affects us in ten thousand wa^^s, and often 
without any ability on our part to prevent it. It 
affects men's characters, talents and destinies. In 
studying closely the laws wdiich govern observations 
in astronomy, and other professions Vk^hich require 
an accurate note of phenomena, it has been discov- 
ered in the last half century that every man has 
what is called a personal equation, which defines his 
capacity for accurate observation. No man can 



ESSAYS AND HISTORICAL NOTES. 309 

instantaneouslj perceive what passes before liis senses, 
as, for example, the conjunction of two planets, or 
the first contact of two heavenly bodies. It would 
seem that this belongs to omniscience alone. And no 
two men have exactly the same capacity for imme- 
diate perception. The difference between them depends 
on their respective organization of brains, nerves and 
organs of sense. This equation has been found so 
important in observations requiring the greatest 
accuracy as to render it necessary to ascertain by 
experiment, and to record, the relative personal equa- 
tions of the different emplo^^es of our Coast Survey. 
The fraction of a second, which each requires for 
perception, is measured, and is always deducted from 
his recorded observations. Wonderful as this discov- 
ery is, it is not more wonderful than other things in 
human experience to which attention has not yet been 
directed. For example, a certain instant of time 
(almost infinitesimal, it is true), occurs between the 
conception of an idea, and for the word which stands 
for and represents it. The ease and fluency with 
\vhich one man can express his ideas, and the difiiculty, 
tardiness and hesitation which is experienced by 
another, depends respectivel}^ on the infinitesimal 
instant, in each case, required for calling up the words 
which represent their ideas ; in other words, they 
depend upon the rapidity of association which the 
two men respectively possess. Other circumstances, 
of course, contribute largely to make up the difference 
between them. The different degrees of familiarity 
which they have with the forms of expression, depend- 
ent upon their relative culture, education and exper- 
ience, have much to do with it. One man may have 



310 MISCELLANEOUS WRITINGS. 

cultivated the use of language all his life ; and the 
other may have neglected it. But supposing them to 
be equal in this respect, there will still be all the differ- 
ence in the v^orld between them in their respective 
powers of expression and utterance. One will be 
brilliant, ready and interesting ; the other tedious and 
drawling. The one will hold crowds hanging on his 
lips with bated breath ; the other will disperse them 
with equal facility. 

In all things, time is an essential element. Electricity 
requires time to execute its effects. Light requires 
time to traverse the regions of space. Thought 
requires time to grasp its objects, and time again to 
clothe them with expression. And he, who, in all 
things is most nearly the master of time is master of 
the world. 

February 10, 1877. 



THE TEACHING OF CHILDREN. 

In teaching, regard must be had to the faculties 
possessed by the pupil. In childhood, memory ; in 
youth, the understanding ; in mature life, the reason, is 
the predominating faculty. If either of these is unduly 
exercised out of season, injury is sustained by the 
violence, and the powers in condition for exercise are 
unjustly repressed and never regain their proper tone. 
Modern school books and methods of teaching often 
disregard these fundamental principles of our nature. 
The attempt to teach spelling and etymology, and even 
natural philosophy at the same time, and in the same 
lessons, to a child of eight or ten j^ears, is absurd, and 



ESSAYS AND HISTORICAL NOTES. 311 

will fail in every direction. The rules of arithmetic, 
to be properly and usefully learned, must be learned by 
heart, without attempting to stuff the mind with their 
reasons. But memory may be aided by mechanical 
means. Spelling may be fixed in the mind by the chimes 
of sound, mnd the harmonv of rhythm striking on the 
drum of the ear. By this means, long columns of 
words having the same number of syllables, the same 
accent and a succession of like vowel sounds, will 
become indelibly fixed on the sensorium so that tl:e 
slightest deviation in letter or sound will send a repul- 
sive thrill through the nervous s^^stem. Rational 
spelling — that is, spelling by reason and rules — can 
never compare in practical accuracy with this mechan- 
ical spelling printed upon the memory and the brain 
in childhood. 



FIT EXPRESSIONS. 

Solomon says, "An apple of gold in a cushion of 
silver, is a word spoken in season." Prov. XXY, 2. 
The translation of this proverb has had many varia- 
tions. The " Septuagint " says, "A golden apple in a 
setting of cornelian, is a sentence well spoken." The 
Latin Vulgate, " It is apples of gold on beds of silver, 
when one speaks a word in due season." " Coverdale," 
"A word spoken in due season, is like apples of gold 
in a silver dish." " Cranmer," "A word spoken in 
due season is like apples of gold in a graved work of 
silver." "The Geneva," "A word spoken in his place 
is like apples of gold with pictures of silver." " The 
Bishop," "A word spoken in due season is like apple 



312 MISCELLANEOUS WRITINGS. 

of gold in a graved work of silver." " The Author- 
ized," "A word fitly spoken is like apples of gold in 
pictures (or baskets) of silver." In another passage, 
Solomon breaks forth in this wise : "A word spoken 
in due season, how good is it !" Proverbs, XV, 23. 
Here is an attempt to express an important truth — to 
wit, the masterly power and beauty of fit expression. 
The great truths of humanity only require proper 
enunciation to secure acceptance. No labored proof is 
necessary. When clothed in exact and appropriate 
expression, they address themselves to the intuitive 
consciousness and are recognized. Like a well fitting 
garment which reveals the graces of the person, and is 
itself unnoticed, so apt and proper expression carries 
truth home to the understanding and heart without 
diverting the fancy. But it must be clear, perfect and 
free from redundancy. It must also be striking ; tame 
words are unheeded, and leave no impression. The 
strong, nervous forces of the language are requisite. 

A truth sometimes lies on the mind for years before 
it can find fit utterance, but when at last fitly uttered, 
it tells. The word then spoken cannot be forgotten. 
It finds a lodgment in every heart. 

This power of fit expression is a wonderful moral 
force. It moves senates ; it moves nations ; it moves 
the world. A mistake is often made b}^ the young in 
neglecting its cultivation. They cannot duly appre- 
ciate its value. Only the experienced can fully do so. 
They are apt to suppose that the thought, facts, ideas, 
are the main thing to acquire, and that words will 
come of themselves. Facts and ideas are essential, 
but no more so than the power of correct and forcible 
expression. They are like unemployed capital ; like 



ESSAYS AND HISTORICAL NOTKS. 313 

arms laid up in store, until the power to use and wield 
them has been acquired. Thej may benefit their pos- 
sessor individually, but they give him no power over 
others until he has learnt the art of communicating 
them in strong and beautiful language. 

An art, it certainly is, requiring for its acquisition 
careful study and constant exercise ; and this study 
can never be remitted. It is as necessary at fifty 
as at twenty-five ; in a speech to the senate, as in a 
Sunday school address ; but when acquired, how 
transcendent is its power ; how glorious its effects ! 

This study and constant use are as necessary to a 
^vriter as to a speaker. Nothing tells but excellence ; 
jQothing is eiccellent but what is the result of labor. 

Stowe, 1877. 



ELOQUENCE.* 



** The impi£ssion which every person, whether on 
ihe platform or in conversation, makes on his fellows, 
is the moral resultant, not of what he says, but of 
what he has grown up to be ; of his manhood, weak 
or strong, sterling or counterfeit ; of a funded but 
unreckoned influence accumulated unconsciously and 
spending itself according as the man is deep or shal- 
low, like a reservoir, or Kike a spout, or an April 
shower." Prof Matthews, in " Getting On in the 
World." 

The above observation is so true that the wonder 
is, it has never been made before. We have approaches 
to it in such proverbs as ' ' Actions speak louder than 



* See Bolingbroke's ''Spirit of Patriotism," Works, Vol. IV, p. 224. 
Ed. 1809. Description of Demosthenes and Cicero. 



314 



MISCELLANEOUS WRITINGS. 



words," etc. I would make but one alteration in it, 
namely, by adding the words "so much" after the 
word "not," so as to read "not so much of what he 
says, as of what he has grown up to be," etc. An 
insignificant man mav utter words as wise as even 
Solomon uttered without producing the slightest 
impression ; whilst the same words spoken by one 
whom we have learned to reverence and look up to, 
will be drunk in with delight, and produce a lasting 
influence upon our lives. The one is not preceded by 
an}^ preparation on our part to appreciate him ; whilst 
the character of the other has already made a lodg- 
ment in our minds which disposes us to pay the strict- 
est attention to his speech, and to give it the fullest 
effect. It is in us, not in the speaker, that the cause 
of the difference of impression lies. The effective 
speaker has already, by his previous reputation, 
affected us in his favor. We listen to him as a master, 
because we have come to regard him as such before- 
hand. This weight of character which thus fills out 
and gives due effect to a man's utterances, may be 
partially, though but partially, supplied by the favor- 
able presumptions which arise from his appearance, 
air and manner, which presuppose, or give reason to 
presuppose, those characteristics which command our 
confidence, when we kno-w, or believe them to exist. 



STYLE. 



The perfection of style consists in the use of the 
exact speech necessary to convey the sense in the 
fewest words consistent with perspicuity, at the same 
time having regard to appropriateness and harmony 



ESSAYS AND HISTORICAL NOTES. 315 

of expression. Its greater excellencies are directness, 
accuracy, appropriateness and perspicuity. When 
these qualities are accomplished with a clear and \vell 
modulated enunciation, the thoughts of the speaker 
go straight to the understanding of his hearers, keep 
their attention fixed, and leave no time for inclination 
to wander, criticise, or even to notice the manner in 
which they are con vej^ed. The desired effect necessarily 
follows, whether it be conviction or the excitement of 
the emotions or passions. When mind speaks directly 
to mind, spirit to spirit, it gives to the communication 
the greatest possible power. Redundancy, circumlo- 
cution, inappropriate diction, cloud the senses, divert 
the attention, produce weariness and deprive the 
effort of any useful effect. 

In a public speaker, besides the above qualities of 
style, fluency is also necessary, by which I mean the 
po-vver of readily calling up the exact words \vhich the 
style requires. When these excellencies are all com- 
bined and the thotights are vigorous and impressive, the 
effect is irresistible. The mind is carried along, as with 
a whirlwind to the point which the speaker desires. 

This talent of effective speaking w^as possessed in 
an eminent degree by Lord Bacon, by Vice-President 
Burr, and by Mr. Judah P. Benjamin. The secret lies, 
not in fluency merely, but also in the exact and appro- 
priate selection of v^ords and phrases to convey the 
w^hole sense and nothing more. Of course the thoughts 
must be worthy of the occasion. 

" When Atreus' son harangued the listening train, 
Just was his sense, and his expression plain. 
His words succinct, yet full without a fault. 
He spoke no more than just the thing he ought." 

Popes Iliad, III, syj. 

August 21, 1879. (Stowe). 



316 MISCELLANEOUS WRITINGS. 

METAPHYSICS. 



"He knows -what's what, and that's as high as metaphysic's w^it can 
fly." — Hudibras. 



Metaphysics. Metaphysical writers do not seem to 
me to be exact enough in their accounts of the Human 
Mind. Locke refers the origin of all our ideas to Sen- 
sation and Rejection. Stewart, meaning the same 
things, to Perception and Consciousness. They tell 
us that the mind is conversant about no other ideas 
than what these two sources furnish. But is it so ? 
Let us see. We have a knowledge of eternal things 
by perception, and a knowledge of Perception by con- 
sciousness. Thus one faculty of the mind contem- 
plates the load-stone, and isitself immediately reviewed 
by another faculty of the mind. Now, in contemplat- 
ing the load-stone, we cannot expect that we are 
acquainted with all its properties, or know all about 
it, and so, by analogy, we would immediately be led 
to suppose that in contemplating the power by which 
we perceived the load-stone, I would rather say the act 
of the mind in perceiving the load-stone, we are unable 
to grasp all the properties that appertain to that act. 
By consciousness we know there was a battle at 
Bunker's Hill ; perhaps we know the number of killed 
and wounded, yet ten thousand little circumstances of 
valor and distress, which we have every reason to 
believe happened to individuals in that battle are 
known nothing of. I say b}^ analogy we would be 
led to suppose that many things appertaining to the 
operations of the mind w^holly escape our observation 
or elude the grasp of consciousness. But I think that 



ESSAYS AND HISTORICAL NOTES. 317 

we have more than analogy to support this. When 
I have stood on a mountain and witnessed the setting 
of a calm summer's sun— the waters irradiating differ- 
ent parts of the wide landscape, and the fields, some 
yellow, some green, some brown, checkering the view 
like a rich carpet of nature ; the gently nodding trees, 
the songs of evening birds, the lowing of cattle in the 
distance, and the bleating of flocks, all conspiring to 
enchantment, my emotions for a brief hour have been 
indescribable, and, in any other circumstances, incon- 
ceivable. My spirit so rapt, my enjoyment so exquisite, 
my thoughts so sublimated, that I would give myself 
up to the torrent flow of those intoxicating ideas. At 
such times I am sure that I have passed many min- 
utes without a thought of watching the operations of 
my mind or emotions — my mind ? That v^as quite 
absorbed in drinking delight from the exhilarating 
draught, and after the spell had passed away, I had 
but a faint idea, an indistinct recollection of the 
enchanting dream. I did not make the attempt to 
grasp the feelings of my mind, or to watch them by 
the power of consciousness. I had no time to watch 
the workings of my mind. So completely absorbed 
was I in feeling the enjoyment of the scene, that I had 
no opportunity of watching t\\at feeling. I afterwards 
knew in general, that I had felt, and that I had felt 
indescribable — na}'^ — almost inconceivable sensations. 
But to endeavor, then, to get up such a conception of 
those sensations from the scattered fragments of con- 
sciousness which I did exercise at the time, would 
have been as vain as an attempt to cut a robe 
from the sky and trim it with the rainbow. And 
yet, in the case both of perceiving the load-stone 



318 MISCELLANEOUS WRITINGS. 

and of feeling the delights of the evening scenery, 
every modification, quahty and property of such 
perception and of such feehng ; in short, every 
mental circumstance by w'-hich they were attended, 
was an idea of the mind, however many of them may 
have escaped the notice of consciousness, and many of 
them, in my opinion, did so escape. If so, then we cer- 
tainly have ideas which do not owe their origin imme- 
diately to perception or consciousness. As there are 
many external objects which we do not perceive, so 
there are many internal workings of the mind of 
which we may not be conscious. If we say that we have 
no ideas except what we perceive, or are conscious of, 
we make the perception or consciousness of our idea 
necessary to its existence, which I do not believe. 



UPHAM ON THE MIND AND ITS DISORDERS. 

Professor Upham, in his treatise on " Imperfect and 
Disordered Mental Action," arranges his subject 
according to the analysis of the mind in its natural 
state and operations — considering, in order, the imper- 
fections and diseases which affect each faculty. 

His classification of mental operations coincides in 
the main, with the old division of the mental capaci- 
ties, into the understanding, the affections and the 
will. The nomenclature which he adopts is intellect, 
sensibilities and will. The intellect he subdivides into 
exterior and interior, corresponding, in most respects, 
with Locke's division into sensation and reflection. 
The exterior intellect derives knowledge from the out- 
ward world through the medium of the senses ; the 
interior derives it from a consciousness of the mind's 
own operations, from original suggestion, relative 



ESSAYS AND HISTORICAL NOTES. 319 

suggestion or judgment, and reasoning. To original 
suggestion, he assigns the origin of our notions of 
time, number, motion, memory, sameness, personal 
identity, present existence, etc., which Stewart, after 
Dr. Reid, attributes to common sense. 

Now, it seems to me that a more simple analysis 
may be made of the operations of the mind. I find no 
fault -with the general division into understanding, 
affections and will. The mental operations, or states 
indicated bj these three designations, are entirely dis- 
tinct in their nature, and seem to comprehend all of 
which the human mind is capable. We perceive things, 
facts, truths. This is the operation of the understand- 
ing ; and is a matter of pure intellection. We can 
conceive of beings purely intellectual, who might be 
endowed with this capacity, without being subject to 
any emotions or affections. But we are differently 
constituted. We are also affected by our perceptions. 
Hence the affections or sensibilities, which form a dis- 
tinct and component part of our mental structure. 
The understanding and the affections constitute us 
perceptive and passive or affective beings. We are 
thus rendered capable of knowledge and emotion. But 
our nature does not end here. We are not only per- 
ceptive and passive, but active. We are capable not 
only of knowledge and emotion, but of volition. We 
not only understand and feel, but we will. Hence the 
third and last great division of mental operations — 
the will. 

When we come to subdivide the operations of the 
understanding, it seems to me that the perception of 
the ideas of time, space, number, motion, etc., belongs 
to precisely the same category as the perception of 
outward objects does. It is true we do not perceive 



320 MISCELLANEOUS WRITINGS. 

these things immediately by one of the five external 
senses, but there is a sixth sense by which we do per- 
ceive them. They belong to the framework and con' 
stitution of this outward world into which our Maker 
has placed us, and I consider the formation in the mind 
of a comprehension of this outer world and the things 
therein contained, of its constitution, its manner of 
existence, as a source of knowledge, homogeneous 
in its character, and appreciable by a department 
of the understanding which is one and indivisible. 
Call this the exterior intellect if you will. Names are 
not things, but I think the understanding is a better 
word to denote the power or capacity of the mind to 
comprehend the world as it is, nature, or the exteriof 
universe, than any other that can be chosen. 

There is an exterior or more transcendental inteh 
lect, I admit, which is cognizant of ideas that the 
senses do not reveal, and that the outer world does 
not even suggest. Those ideas are the spiritual ones 
on which our moral nature depends — such as justice, 
purity, faith, sincerity, generosit}^, or, perhaps, personal 
identity, present existence, etc., belong to this class. 
(Memo. — Think further on this subject.) 
I think Prof. Upham's arrangement of the subject 
of mental disorder very philosophical and correct. 
Disorder is the correlative of order in all departments 
of nature and life. The physician considers the human 
system under three aspects — that of physiology, path- 
ology and therapeutics. The lawyer divides his science 
into rights, wrongs and remedies. The divine treats 
of religion under the heads of holiness, sin and redemp- 
tion. In like manner, the true division of mental 
philosophy is into mental physiology, pathology and 
treatment of the insane, etc., etc., etc. 



ESSAYS AND HISTORICAL NOTES. 321 



THE HUMAN MIND. 

The mind of man may be compared to a bird 
ascending with her eye fixed upon the sun. Her hght 
form is successively borne in contrary directions by the 
shifting winds as she passes onward and upward 
through the various strata of the atmosphere. So, 
the mind, as it rises in its progress tow^ard fixed and 
eternal truth, the centre and ultimate object of all its 
inquiries, is, at first, borne along vt^ith the various 
prejudices and opinions of the world, often in conflict 
with each other. At one stage of its progress, it 
adopts notions and views that are often modified or 
entirely changed by more information, or an acquaint- 
ance with new or more plausible expositions, and it is 
only when it acquires sufficient strength and courage 
to mount above the floating current of popular 
thoughts, and out of the reach of the breath of public 
opinion, that it can pursue, with eagle speed and 
unflinching eye, that straight and luminous path which 
leads to the pure and immutable sources of intellectual 
and moral perfection. 

The general influence which the several sciences 
naturally exert upon each other, is a truth too com- 
monly known to merit a remark here. But some of 
the particular instances of this influence are striking 
and worthy of a passing notice. I was lately forcibly 
struck with the influence of the discovery of the art of 
making paper in the eleventh century, and the art of 
painting in the fifteenth century, on all the departments 
of literature and science. There had been giant minds 
in the darkest ages, but their wisdom could never be 



322 MISCELLANEOUS WRITINGS. 

recorded — perhaps they themselves were ignorant of 
letters, and so all died with them that might have 
benefited and enlightened the world. 

May we not also compare a man's individual mind 
to the literary and scientific mind. A man may be 
possessed of a large and capacious mind, may start 
many brilliant thoughts, and give great promise of 
becoming useful and great, but if he suffers his mind 
to rest on its own extemporaneous energies — never 
exerting himself to store his memory with formula of 
truth — that man will be like the dark ages. His start- 
linof thouofhts will be lost in the flux of events — he 
makes no progress in the net amount of knowledge at 
his command, but as fast as he receives knowledge, he 
negligently permits it to pass out of his mind. This, I 
fear, is in some measure the case vv^ith — . 

September 9, 1837. 



THE ENGLISH GUTTURAL U, AS HEARD IN 
BUT, HUT. 

To show the proclivity of English-speaking people 
to drop into this guttural, the following sentence wiU 
show every vowel pronounced in that way : 

" The Editor will insert the bwming of the Martjrs 
in his next c/rcular." 

Here we have ar er ir or ur and yr, all pronounced 
in the same way ; and indeed, it is almost impossible 
for an English speaker to pronounce er or ir otherwise 
than if spelled iir. And yet we have great difficulty 
in learning to pronounce the German o, as in Gcethe, 
although it has nearly the same sound as the English 



ESSAYS AND HISTORICAL NOTES. 323 

short 11, though more prolonged. One not accustomed 
to German, would come very near to the true pro- 
nunciation of o in Gcethe, if he should pronounce it as 
though it were spelled Gurtj, leaving out the sound of 
r. The difficulty is in prolonging the sound suffi- 
ciently to give it the true German effect. With us the 
sound is always, or generally, short. We give it 
greater length in hurt and worth than we do in put 
and but. Accustoming ourselves to uttering the long 
sound wathout pronouncing the r, v^-e could soon very 
nearly acquire the German o. 
December, 1880. 



ER, BY, NEAH. 



Er and Ere is the Saxon termination from wer, 
were, a man, equivalent to the German pronoun er, he. 
As a termination, it signifies an agent, or actor. Thus, 
bake, baker ; dig, digger ; sing, singer ; train, trainer, 
etc., meaning respectively a man who bakes, digs, 
sings, trains, etc., as much as to say, bake-man, dig- 
man, sing-man, train-man, etc. We naturally and 
almost unconsciously add this termination when v-^e 
wish to express the actor who does anything ; thus, 
v^e naturally say dynamiter, photographer, when we 
wish to denote a person who uses the new substance 
dynamite, or w^ho performs the new process of photo- 
graphing. 

By, Bye, is the Danish for town, village, etc. Kence 
in that part of England where the Danes settled, we 
find plenty of towns ending v^rith that termination, as 
Wetherb}'-, Thirkleby, Selby ; in Yorkshire, Derby, 
Denby ; in Derbyshire, and perhaps a hundred places 



324 MISCELLANEOUS WRITINGS. 

in Lincolnshire, the local map being filled with them. 
It may come from Bya, Byan, to inhabit, or from Bi, 
near, in the vicinity of. For, as the people lived' in 
towns, or vills, those who were collected together, Bi 
each other, always made a vill. 

Neah, Anglo-Saxon for near. Neah-bi-er would be 
the near-by-man, hence, our word, "neighbor." 



FREEDOM OF THOUGHT. 

In scientific and historical, especially archaeological 
investigations, the mind should be free from all bias 
and open to the reception of truth and the exact 
result of the evidence presented, no matter what idols 
are overthrown by it. " Bacon," in his Novum 
Organum (B. L. XXXIX-XLIV), says there are four 
species of idols which beset the human mind — Idols of 
the tribe, Idols of the Den, Idols of the Market and 
Idols of the Theatre. 1. Idols of the Tribe are 
inherent in human nature, and the very tribe or race 
of man — the tendency to look at all things from the 
central stand point of self and the senses. 2. Idols 
of the Den are the peculiar mental obliquities of the 
individual, arising from his disposition, education and 
circumstances. 3. Idols of the Market are those 
erroneous impressions derived from intercourse with 
other men, from the loose conceptions attached to 
words and common speech. 4. Idols of the Theatre 
are the dogmas and theories of sects and parties in 
religion and philosophy which attract us, or fetter the 
operations of our minds. The influence of these Idols 
constantly operates to cloud the understanding and to 



ESSAYS AND HISTORICAL NOTES. 325 

shut out the rays of truth. If the remains of a human 
being are found in a geological stratum, or locality 
which indicates the lapse of many ages since that 
being lived, and if those remains show a low type, 
pointing to a great intermediate development of the 
race, the whole religious v^orld, frightened at the bear- 
ing the discovery may have on the accuracy of the 
book of Genesis, bears down upon the obvious deduc- 
tions of the evidence, with indiscriminate and blind 
denunciation. But the man of true scientific instincts 
will regard this commotion with contempt, and will give 
full play to his reason, and accept the teachings which 
the dicovery suggest. He will not shut his eyes to the 
evident facts, but will regard them with fairness and 
candor, as if the book of Genesis had never been written. 
This freedom of thought is repulsive to ninety-nine 
hundredths of men, because it sets at naught their 
cherished opinions, prejudices or dogmas. 

Freedom of thought was the great object for which 
Spinoza contended, and many other great men. 



ASTRONOMICAL, 
SCIENTIFIC 



AND 



MATHEMATICAL. 



tLETTER OF HON. JOSEPH P. BRADLEY, 

ONE OF THE JUSTICES OF THE SUPREME COURT OF THE 

UNITED STATES, GIVING A HISTORY OF THE FIRST 

STEAM ENGINE INTRODUCED INTO THE 

UNITED STATES OF AMERICA. 



Washington, September 20th, 1875. 

David M. Meeker, Esq. 

Dear Sir : The steam engine of which you possess 
a relic* was, as you suppose, the first ever erected on 
this continent. It was imported from England in the 
year 1753, by Col. John Schuyler, for the purpose of 
pumping water from his copper mine opposite Belle- 
ville, near Newark, New Jersey. The mine was rich in 
ore, but had been worked as deep as hand and horse 
power could clear it of water. Col. Schuyler, having 
heard of the success with which steam engines (then 
called fire engines) were used in the mines of Cornwall, 
determined to have one in his mine. He accordingly 
requested his London correspondents to procure an 
engine, and to send out with it an engineer capable of 
putting it up and in operation. This was done in the 
year named, and Josiah Homblower, a young man, 
then in his twenty-fifth year, was sent out to superin- 
tend it. The voyage was a long and perilous one. 
Mr. Homblower expected to return as soon as the 
engine was in successful operation. But the proprietor 
induced him to remain, and in the course of a couple 

f An enlarged photograph of this letter exhibited at the Centennial 
Exposition at Philadelphia in 1876, is now deposited -with the New Jersey 
Historical Society in Newark, N. J. 

Deposited in the " National Museum," Washington, D. C. 



330 MISCELLANEOUS WRITINGS. 

of years he married Miss Kingsland, whose father 
owned a large plantation adjoining that of Col. 
Schuyler. The late Chief Justice Homblower was the 
youngest of a large family of children which resulted 
from this marriage. Mr. Hornblower's father, whose 
name was Joseph, had been engaged in the business of 
constructing engines in Cornwall from their first intro- 
duction in the mines there, about 1740 ; and had been 
an engineer and engine builder from the first use of 
steam engines in the arts, about 1720. The engines 
constructed by him and his sons were the kind known 
as Newcomen's engines, or Cornish engines. That 
brought to America by Josiah was of this description. 
Watt had not then invented his separate condenser, 
nor the use of high pressure. But it is generally con- 
ceded that, for pumping purposes, the Cornish engine 
has still no superior. 

After 1760 the Schuyler mine was worked for sev- 
eral years b}^ Mr. Hornblower himself. The approach of 
the war, in 1775, caused the operations to cease. Work 
was resumed, however, in 1792, and was carried on 
for several years by successive parties. It finally 
ceased altogether early in this century, and the old 
engine was broken up and the materials disposed of. 
The boiler, a large copper cylinder, standing upright, 
eight or ten feet high, and as much in diameter, with 
a flat bottom and a dome-shaped top, was carried to 
Philadelphia. The relic in your possession was a por- 
tion of the c^dinder, and was purchased by some per- 
son in Newark. 

In 1864, I met an old man named John Van 
Emburgh, then a hundred years old, who had worked on 
the engine v^hen it was in operation in 1792. He 
described it very minutely and, I doubt not, accurate!}'. 



SCIENTIFIC, "studies," LETTERS, ETC. 331 

It is from his description that I happened to know the 
kind of engine it was ; although from the date of its 
construction, and the use to which it was put, there 
could have been but little doubt on the subject. 

What changes have been wrought in one hundred 
and twenty-two years ! What mighty power has been 
created on this continent, in that time, by the multi- 
plication and improvement of the steam engine ! We 
may well look upon this relic with a sort of supersti- 
tious veneration, and looking forward as well as back- 
ward, wonder what another century will bring forth. 
Respectfully, your obedient servant, 

(Signed) JOSEPH P. BRADLEY. 



EASTER DAY AND COURT TERMS. 

Easter Day is the first Sunday after the first full 
moon that happens after or upon the 21st day of 
March, vernal equinox. Easter Day cannot possibly 
happen earlier than the 22d of March, nor later than 
the 26th of April. 

Lent is a solemn fast of the English and Roman 
churches, called Lent because it is in the spring, that 
being the Saxon name for spring. It is composed of 
forty week days, immediately preceding caster, Sundays 
not being reckoned fast days because they are com- 
memorative of our Saviour's resurrection. Hence 
Lent begins on Wednesday, six whole weeks and four 
days before Easter. This is called Ash Wednesday. 
On that day they formerly wore sack-cloth and ashes, 
hence its name. It can never happen earlier than the 
4th day of February, nor later than the 11th of 
March. The first Sunday before Lent, being the seventh 



332 MISCELLANEOUS WRITINGS. 

before Easter, is called Quinguagesima, being the 
fiftieth day before Easter inclusive. The Sabbath 
preceding that is called Sexagesima, and the preceding 
one, Septuagesima. 

The fortieth day after Easter inclusive is called Ascen- 
sion Day, coming aWays on Thursday. The fiftieth day 
inclusive — the old Pentecost — is called Whit Sunday, or 
White Sundav, because catechumens on the eve of 
that day were admitted to the Sacrament of Baptism 
clothed in white robes. The Sunday after White Sun- 
day, being eight weeks after Easter, is Trinity Sunday, 
which can never happen earlier than the 17th of May, 
or later than the 21st of June. 

Now, the Easter Term always commences on 
the Wednesday fortnight after Easter (which is never 
earlier than the 8th of April, nor later than the 13th 
of May), and continues till the Monday three weeks 
after beginning (which is never earlier than 4th Ma^^, 
nor later than 8th June), being in all twenty-seven 
da\^s, Sundays included, or twenty -three days besides 
the Sundays. 

The Trinity Term always commences on the Friday 
after Trinity Sunday (which cannot be earlier than 
22d May, nor later than 26th June), and continues 
till Wednesdaj' fortnight after it begins (which is never 
earlier then 10th June, nor later than 15th July), 
being in all twenty daj^s, Sundays included, or seven- 
teen da3^s besides the Sundaj^s. 

The Michaelmas Term always commences on the 
6th of November and continues to the 28th of that 
month, being in all twenty-three days. 

The Hilary Term always commences on the 23d of 
January and continues to the 12th of February, being 
in all twenty-one days. 



SCIENTIFIC "studies," LETTERS, ETC. 



J33 



PERPETUAL CALENDAR 

FOR FINDING THE DAY OF THE WEEK ON WHICH ANY 

DAY OF ANY MONTH FALLS IN ANY YEAR BEFORE 

OR AFTER CHRIST, OLD STYLE OR NEW. 





Jan 

Oct 


Apr 

July 


Sep 
Dee 


Jun 


Feb 
Mar 
Nov 


Aug 


Maj' 




Centuries — Old 
Style or Julian. 


1 

8 

15 

22 

29 


2 

9 

16 

23 

30 


3 
10 
17 
24 
31 


4 
11 
18 
25 


5 
12 
19 
26 


6 
13 
20 
27 


14 
21 

28 


Centuries — 
New Style. 


B.C- 


A. D. 


A. D. 


7 
6 
5 
4 
3 
2 
1 


1 

2 

3 
■i 
5 
6 


8 

9 

10 
11 
12 
13 
14 


15 
16 
17 
18 
19 
20 
21 


Sat 
Fri 
Thu 
Wed 
Tue 
Mo 
Sun 


Sun 
Sat 
Fri 
Thu 
Wed 
Tue 
Mo 


Mo 
Sun 
Sat 
Fri 
Thu 
Wed 
Tue 


Tue 
Mo 
Sun 
Sat 
Fri 
Thu 
Wed 


Wed 
Tue 
Mo 
Sun 
Sat 
Fri 
Thu 


Thu 
Wed 
Tue 
Mo 
Sun 
Sat 
Fri 


Fri 
Thu 
Wed 
Tue 
Mo 
Sun 
Sat 


16 

17 


IS 

19. 

20 
21 


... 
23 

24 
25 


26 

27 

28 
29 


Years of the 
Century. 

N. B.— Leap 
years being in- 
serted tT.vice, the ^ 
first number is 
used when the 
given date is in 
January or Feb- 
ruary; the second 
for the other 
months. 

I 


1 

7 

12 

IS 
24 
29 
35 
40 
46 
52 
57 
63 
68 
74 
80 
85 
91 
96 


8 
13 
19 
24 
30 
36 
41 
47 
52 
58 
64 
69 
75 
80 
86 
92 
97 


3 
8 
14 
20 
25 
31 
36 
42 
48 
53 
59 
64 
70 
76 
81 
87 
92 
98 


4 

9 

15 

20 

26 
32 
37 
43 
48 
54 
60 
65 
71 
76 
82 
88 
93 
99 


4 

10 
16 
21 

32 

38 
44 
49 
55 
60 
66 
72 
77 
83 
88 
94 
100 


5 
11 
16 

22 
28 
33 
39 
44 
50 
56 
61 
67 
72 
78 
84 
89 
95 
100 


6 
12 
17 
23 
28 
34 
40 
45 
51 
56 
62 
68 
73 
79 
84 
90 
96 


EXPLANATION OF 
THE CALENDAR. 

The days of the 
difterent months, as 
given above, fall, in 
any year, on the 
week-day found op- 
posite the century 
(Old or New Style) 
in which the j-ear 
occurs, and over 
the year thereof. 
The line of week- 
days in which that 
day is found under 
any month (with 
the month-day 
numbers above) 
forms the entire 
Calendar for that 
month and year. 



Example 1. To find the day of the week for July 4th, 1S81. Opposite 
Century 19, New Style, and over year 81, is Saturday. Therefore, July 2d 
is Saturday; and the line of week-days in which Saturday falls under July 
(which is the second line), with the days of the month above, constitutes 
the entire Calendar for July, 1881, according to which the 4th falls on 
Monday. 

Example 2. To find the day of the week on which Columbus disco-v- 
ered America, October 12, 1492, Old Style. Opposite Century 15, Old Style, 
and over 92 in black letter (it being leap year), is Monday. Therefore, 
October 8th was Monday; and the line of week-days in which Monday 
falls under Mondays (which is the sixth), with the days of the month 
above, constitutes the entire Calendar for October, 1492, Old Style, and 
the 12th, as seen falls on Friday. 

Copyright, 1875, by Jos. P. Bradley 



334 



MISCELLANEOUS WRITINGS. 

TABLE 



FOR FINDING MEAN TIME OF NEW MOON FOR ANY MONTH 
AND YEAR IN A PERIOD OF THIRTY CENTURIES. 



B. C 


D. 


H. 


M. 














Moon's retarda- 










Years of each century 
arranged in Metonic 


Moon's 
advance in 


tion in each 
month, except 


800 


7 


IS 


31 










Cj'cles of 19 years 


eac 


h j-ear. 


March, in which 


700 


12 


2 


55 


each. 










it advances. 


600 


16 


11 


19 
















500 


20 
25 


19 

4 


42 

4 
















400 




































I. 


n. 


in. 


IT. 


Y. 


YI. 


D. 


H 


>r. 




D 


H. 


M. 


300 


29 

4 


12 

8 


26 
3 




























200 


1 


20 


39 


58 


77 


96 











Jan. 











100 


8 


16 


23 


2 
3 


21 
22 


40 

41 


59 
60 


78 
79 


97 

98 


IS 

S 


21 
6 


33 
21 


Feb. 
Mar. 


1 
+ 


11 

1 


16 








28 


A. D. O. 


S 




4 


23 


42 


61 


SO 


99 


27 


3 


54 


Apr. 


1 


9 


48 








5 
6 


24 
25 


43 

44 


62 
63 


81 
82 


100 


15 
4 


12 

21 


42 
31 


Ma J' 
June 


1 
3 


21 

8 


4 


1 


13 





43 


20 


101 


17 


9 


2 


7 


26 


45 


64 


S3 






23 


19 


4 


July 


3 


19 36 


201 


21 


17 


21 


8 


27 


46 


05 


84 






13 


3 


52 


Aug. 


5 


6 


52 


301 


26 


1 


38 


9 


28 


47 


66 


85 






1 


12 


41 


Sep. 


6 


IS 


8 


401 


30 


9 


55 


10 


29 


48 


67 


86 






20 


10 


13 


Oct. 


7 


5 


24 


501 


5 


5 


28 


11 


30 


49 


68 


87 






9 


19 


2 


Nov. 


8 


16 


40 


601 


9 


13 


44 


12 


31 


50 


69 


88 






28 


16 


34 


Dec. 


9 


3 


55 


701 


13 


21 


59 


13 


32 


51 


70 


89 






17 


1 


23 






1 




801 


IS 


6 


13 


14 


33 


52 1 71 


90 






6 


10 


12 


In Leap-year, re- 


901 


22 


14 


27 


15 


34 


53 


72 


91 






25 


7 


44 


tardation 1 day 


1001 


26 


22 


40 


16 


35 


54 


73 


92 






14 


16 


33 


more after Feb- 


1101 


1 
6 


18 
2 


8 
20 


17 
18 


36 
37 


55 
50 


74 


93 

94 






3 

21 


1 


21 

54 


ruary. 


1201 




1301 


10 

14 


10 
18 


31 
41 


19 


38 


57 


76 


95 






11 


" 


43 


N. B. Columns 


1401 
















2, 3, 4 show the 




















first Ne\v Moon in 


1501 


19 


o 


51 




COREBCl 


noN. 






the century, in 


1601 


23 

27 


10 
19 


59 

8 












January; 11, 12, 


1701 












13 show Moon's 










Cyc 


le II. Bissextile 




H. 

f 16 


M. 
31 


advance in each 








year; 15, 16, 17 


A. D. N. 


S. 




1, 2, 3 after 
III. Bis. & 3 aft 


Bis. 
er Bis. 


f 9 


29 


sho\v Moon's re- 
tardation in each 
month. Correc- 














1501 


29 


2 


51 




1, 2 after B 


IS. 


-14 


58 


tions for irregu- 


1601 
1701 


3 
9 


22 
6 


15 
24 




IV. Bis. &2,3a 
1 after Bis. 


fterBis. 


f 1 


34 
26 


larities of Moon's 
motion would not 
vary the result 1 2 


1801 


14 


14 


31 




V. All years 




— 5 


55 


hours either way. 


1901 
2001 


19 
24 


22 
6 


38 
47 




VI. Bissextile 
1, 2, 3 afte 


r Bis. 


-1-10 
-13 


36 
24 


Time: Washing- 
t o n — r e c k o n e d 
from midnight. 


2101 


29 


14 


54 















Directions — Add together time of Ccnturial Now Moon and Moon's 
advance for the vear, applying correction; deduct retardation lor the 
month, adding a lunation (29d. 12h. 44m.) if necessary: or castmg out a 
lunation if the result exceeds the number of days in the month: the re- 
mainder will be the time of mean New Moon for the mouth required 
For mean Full Moon, add or subtract half a lunation (14d. ISh 22ni.» 
Example- Required mean New Moon for October, 1S79. Here, Centurial 
New Moon for 1801 N. S. is 14d. 14h. 31m.; Moon's advance for 79, Sd. 6h. 
•^Im • sum 22d 20h 52m. Correction for Cvcle V.,— oh. 55ni.; remainder, 
•''^d 14 5'7m. Retardation for October, 7d. 5h 24m.; which deducted, 
leaves 15d. 9h 33m. That is, Mean New Moon October 15, at 9h. 33m. A.M. 



SCIENTIFIC " STUDIES," LETTERS, ETC. 335 

THE NEW CALENDAR PROPOSED. 

[From The Nation of April 29, 1875.] 

The National Academy of Sciences has just con- 
cluded its April meeting in Washington, "which was 
held at the Smithsonian Institution, under the presi- 
dency of Professor Henry. The attendance was not 
large, either of members or of the public, but a respect- 
able number of papers were read, of which a very full 
report has been given by the Tribune. Of the more 
strictly scientific papers that of Professor Loomis of 
Yale College on the results to be reached from a dis- 
cussion of the signal service maps, and Professor 
Langley's account of Solar phenomena observed at 
Allegheny Observ^atory, were of most general interest 
whilst President Barnard's Report for the Committee 
on Weights, Measures and Coinage, and Mr. Justice 
Bradley's (of the Supreme Court) proposal for a 
reform of the Gregorian Calendar, referred most 
directly to practical questions. The reform of the 
calendar has been somewhat fully discussed lately, and 
a bill setting forth that " the Gregorian year pays no 
proper respect to the cardinal points in the earth's 
orbit," and proposing to secure such respect, was laid 
before the House of Representatives at its last session. 
Mr. Justice Bradley's plan proposes to fix the begin- 
ning of the year at the winter solstice (December 21) 
and to divide it into four unequal parts of 90, 93, 93 
and 89 days. In leap j-ears the last part is to have 
90 days. In the remarks on this paper a much better 
plan was mentioned, which had been previously dis- 
cussed by the Philosophical Society of Washington. 
This was to begin the year with 21st December, and 



336 MISCELLANEOUS WRITINGS. 

to divide it into six parts of two months each, each 
part to have sixty-one days in leap years, and the last 
part to have but sixty days in common years. 

The scheme would be somewhat as follo\vs for a 
common year of both systems : 

Jan. Feb. Mch. Apl. May Jun. Julj' Aug. Sep. Oct. Nov. Dec. 

Gregorian 31 28 31 30 31 30 31 31 30 31 30 31 
Ideal 31 30 31 30 31 30 31 30 30 31 30 30 

Thus, only February, August and December would 
be altered by this ingenious plan, which is due to Mr. 
E. B. Elliott, the statistician. 



[From The Nation, May 13, 1875]. 

An esteemed correspondent writes us from Wash- 
ington : " In noticing Mr. Justice Bradley's proposed 
arrangement of the calendar, you did not explain the 
manner in which, by his plan, the year would be 
divided into four quarters of three months each, 
exactly corresponding with the four natural divisions 
of the year made by the sun's arrival at the two 
equinoxes and two solstices. Thus, beginning at the 
winter solstice, when the sun is at the extreme southerly 
point reached by him, where he commences his return 
to the north. Judge Bradley would place the new year, 
or January 1st, on the present 21st day of December. 
Then giving to January, February and March each 
thirty days, the 1st of April, or beginning of the 
second quarter, w^ill, in common years, fall on the 21st 
of March, and in leap year, on the 20th of March, or 
exactly at the vernal equinox, when the sun is on the 
equinoctial line and the days and nights are equal. 
Then, giving to the next six months, each thirty-one 



SCIENTIFIC "studies," LETTERS, ETC. 337 

da^'S, the 1st of July, or the beginning of the third 
quarter will fall in common years on the present 22d 
of June, and in leap years on the 21st, which is the 
summer solstice, when the sun is at his farthest point 
north, and the days are longest ; and the 1st of Octo- 
ber, or beginning of the fourth quarter, will fall in 
common years on the 23d September, and in leap 
years on the 22d, which is the autumnal equinox, 
when the sun recrosses the line and the days and 
nights are equal again. Then giving to October and 
November each thirty days, and to December tw^enty- 
nine in common years and thirty in leap years, the 1st 
of January will again fall on the present 21st of Decem- 
ber in all cases. This allotment of days to each 
month is easy to remember ; is as convenient as 
any, and makes them correspond to the great natural 
phenomena of the sun's annual circuit. It is a lesson 
in astronomy in itself, and is generall}^ approved as the 
best plan that has been proposed. The placing of the 
intercalary day of leap year at the end of the year 
would be a great advantage in all astronomical calcu- 
lations and arrangements of the calendar. And the 
conformity of the entire civil year to the natural year 
would, of course, be an advantage amply sufficient to 
compensate for any temporary inconvenience arising 
from the change. No alteration in the recurrence of 
leap years from the arrangement of the Gregorian 
Calendar is proposed. That is sufficiently accurate 
for many centuries to come. The law prepared by 
Judge Bradley to effect the proposed change, and 
which was read to the National Academy of Science, 
is extremely simple and comprehensive, and would 
obviate all inconveniences of a business character that 
could possibly arise. 



333 MISCELLANEOUS WRITINGS. 

NEW CALENDAR PROPOSED. 

Washington, April 17, 1875. 
J. E. HiLLGARD, Esq. 

Dear Sir : Allow me to recur to the subject of a 
natural and a scientific year. This year ought to 
correspond with the natural Solar year. In the 
northern hemisphere the natural commencement of the 
year is at the time of the sun's station in the winter 
solstice. Then he commences his return to warm and 
vivify the world and reclothe it with vegetation. 
Every rustic, by noting the sun mark in his doorway, 
can tell when the old year ends and the new^ begins. 

The average time of the winter solstice is December 
22 d, at 1 A. M. From the winter solstice to the 
vernal equinox is about eighty-nine days, one hour; 
from thence to the summer solstice is about ninety- 
three days, less three and one-half hours ; thence to 
the autumnal equinox, about ninety-three days, four- 
teen and three-quarter hours ; thence to the winter 
solstice again, about ninety days, less six and one-half 
hours. 

By commencing the year on December 21st and 
giving to the winter ninety days, spring ninety-three, 
summer ninety-three, and fall eighty-nine in common 
years, and ninety in leap years, w^e shall have for 
January, February and March thirty days ; April, 
]\Iay and June each thirty-one da^^s ; July, August and 
September each thirty-one days ; October, November 
and December each thirty days, in leap year — December 
one less other years ; and the seasons will commence 
very nearly at the equinoxes and solstices. The first 
days of January, April, July and October would then 



SCIENTIFIC " STUDIES," LETTERS, ETC. 339 

fall, according to the present calendar, on the 21st of 
December, the 21st of March, 22d of June and 23d of 
September. The cardinal points would occur on these 
days in the majority of cases. 

No change would be required except that of 
advancing the year eleven days and placing the inter- 
calary day of leap year at the end of the year. Sup- 
posing the change to be made in December of this 
year, 1876, the year 1877 would commence December 
21 and end December 20, and contains 365 days ; 
1878 ditto, 1879 ditto; 1880 would commence 
December 21, 1879, and end December 20, 1880, and 
contain 366 days, the 29th February making the 
additional day. The calendar would continue to 
follow the Gregorian style. The same years v^ould be 
leap year as now. 

This arrangement v^^ould correspond with nature 
and would be attended with many advantages. The 
placing the intercalary day at the end of the year 
v^ould be worth the trouble. 

The following bill v^^ould effect the change and 
obviate all civil inconveniences : 

BILL. 

A BILL TO REFORM THE CIVIL YEAR. 

1. Be IT ENACTED, that, after proclamation shall 
be made as hereinafter provided, the civil year shall 
commence with the 21st day of December, according 
to the present reckoning, and the month of January 
shall be advanced so as to begin with that day ; and 
the months shall follow each other in the same order 
as heretofore, and shall have the following number of 
days, respectively, to wit : January, February and 



340 MISCELLANEOUS WRITINGS. 

March, each thirty ; April, May and June, each thirty- 
one ; July, August and September, each thirty-one ; 
October and November, each thirty, and December 
thirty in leap years and twenty-nine in common years. 

2. And be it enacted, that the President of the 
United States be, and he is hereby requested to instruct 
the Ministers and other representatives of the Govern- 
ment of the United States in foreign countries where 
the Christian j^ear is used, to lay before the respective 
governments to which they may be accredited the plan 
for rearranging the civil year, as presented in the first 
section of this act, and to endeavor to procure their 
co-operation therein ; and as soon as, in the judgment 
of the President, a sufficient number of said govern- 
ments shall consent to join in such new arrangement, 
the President is hereby authorized and directed by 
public proclamation to declare when the said arrange- 
ment shall commence ; and the year which shall pre- 
cede the commencement of said arrangement, shall 
terminate at the end of the 20th day of December 
instead of the 31st day of said month, and the next 
civil year shall commence on the next following day. 

3. And be it enacted, that the change of the 
civil year, herein provided for, when the same shall 
take place, shall not have the effect of shortening or 
anticipating any period of time provided for in any 
contract, or the period of arriving at any year of age, 
or the period provided for the running of any statute 
of limitations, or for the publication of any notice or 
order, or for the doing of any act, matter or thing, 
except, however, and it is provided, that in all cases 
where nominal days of any months or year are, or 
shall be fixed, prescribed or allotted by law, custom. 



SCIENTIFIC "studies," LETTERS, ETC. 341 

usage, by-law or regulation for the meetings of any 
public or private bodies whatever, or for the com- 
mencement of the terms of an^^ courts, or for the 
commencement or termination of any term of office, 
or for the acts of any officers or persons whatever, the 
said meetings, terms and acts respectively, shall be 
held, commenced, terminated, and performed respect- 
ively on the same nominal days in the civil month or 
year as newly arranged. 



A LETTER FROM JUDGE BRADLEY, OF THE 

SUPREME COURT OF THE UNITED STATES 

TO THE SECRETARY OF THE 

TREASURY. 

Washington, April 15, 1872. 

Hon. George S. Boutwele, 

Secretary of the Treasury. 

Sir : For the purpose of promoting the object 
of a large number of engineers and others inter- 
ested in steam transportation, who desire that 
Congress should authorize experiments to be made to 
ascertain, with greater certainty, the cause of explo- 
sions and the best means of preventing them, and at 
the instance of persons speaking in their behalf, I have 
taken the liberty of addressing you the following 
letter. I hope that the intrinsic importance of the 
subject will be my excuse for troubling you with its 
perusal. 

After the lapse of more than fifty years, the subject 
of explosions of steam boilers has lost none of its interest 



342 MISCELLANEOUS WRITINGS. 

or importance. They recur as frequently as ever, and 
are attended with frightful results to persons and 
property. Legislation has hitherto wholly failed to 
correct the evil. The cause of this failure has been 
the ignorance which has existed (and which still exists) 
with regard to the precise causes by which explosions 
are produced. The want of proper experiments on 
real boilers has left the matter open to speculation ; 
and the result is a wide diversity of opinion amongst 
even skillful engineers as to the true causes of these 
disasters. With such a diversity of opinion, it is 
impossible to procure verdicts against those who are 
really guilty of negligence. In nearly all cases that 
have occurred since the passage of the first law in 
1838, the guilty party has been shielded by the uncer- 
tainty and doubt that has prevailed as to the causes 
of the explosion. The notion has become prevalent 
that these accidents (as they are called) are the result 
of some mysterious cause — the production of an 
unknown gas, the combination of electrical and chem- 
ical forces, against which no foresight can guard. 
Such notions have a tendency to stop inquiry, as well 
as to relax the attention and watchfulness of engineers 
in charge. A series of experiments, conducted on a 
proper scale, and in a proper method, would undoubt- 
edly tend to dispel such illusions and to reveal the 
exact causes of explosion, against which it is necessary 
to guard. And whatever diversity of opinion exists 
among engineers as to these causes, it is believed that 
they are quite unanimous as to the necessity of direct 
proof, by experiments on actual boilers, on the follo^v- 
ing points : first, the comparative strength of old and 
new boilers, of boilers differently constructed, and of 



SCIENTIFIC "studies," LETTERS, ETC. 343 

boilers constructed of different kinds of iron; and, 
secondly, the methods of relieving them of too great 
pressure. 

But the experiments that are requisite for attain- 
ing these ends require too great an outlay of money 
to be maintained at private expense. They need, and 
should have, the support of Government, especially as 
the Government attempts (very properly) to regulate 
the subject. 

Experiments on the causes of boiler explosions 
were made about thirty-five years ago by the Franklin 
Institute of Philadelphia, and a report vi^as made to 
the Secretary of the Treasurj^, who had furnished the 
funds. These experiments were made by a very ab^c 
board, of which Prof. A. D. Bache was chairman. The 
results obtained and the deductions from them consti- 
tute nearly all that is now kno^wn on the subject of 
explosions and of the means of preventing them. Tliis 
report has been published all over Europe, and forms 
the standard of reference. (See Report E, Doc. 1G2, 
1st Sess., 24-th Cong.) But these experiments were 
made upon model boilers of small dimensions, for the 
purpose of obtaining theoretical results as to the 
behavior of the structure under certain pre-conceived 
conditions. The trial of real boilers and the careful 
examination of boilers actually burst, and especially 
the reconstruction and testing of them under various 
conditions, was not attempted. 

There have been as yet, in no country, any serious 
attempts made by trials and experiments on steam 
boilers of the size and kind generally used, to find the 
laws governing explosions ; or to find the means ot 
preventing them. From their dangerous nature, such 



344 MISCELLANEOUS WRITINGS. 

experiments cannot be made upon boilers in use ; and 
the examination of the debris of an explosion generally 
adds nothing to our knowledge. The necessity of 
such experiments has been acknowledged in all coun- 
tries where steam is employed ; but the expense and 
difficulty of making them on actual boilers have pre- 
vented their being made. From a few experiments 
made at Sandy Hook in November last, upon boilers 
of different ages, in the presence of a large number of 
engineers, it became perfectly apparent that much is 
yet to be learned on the entire subject, and that intel- 
ligent and efficient legislation cannot be devised in 
reference to it until the investigation is prosecuted 
much farther than it has yet been. The probability is 
very great that, contrary to opinions frequently 
advanced, there are no forces acting in the explosions 
of steam boilers but such as can be controlled, and 
that in every instance, by proper experimental inquiry, 
the true cause can be ascertained. 

The principal objects of a proper system of experi- 
ments would be the following : 

1. To detect the faults in the ordinary construction 
of boilers. 

2. To adopt more perfect means of preventing 
dangerous pressure. 

3. To acquire such certainty as to the true causes 
of disasters by explosions that the penal laws on the 
subject may be strictly and intelligently enforced, and 
that thereby owners, constructors and those having 
charge of boilers may be more careful and diligent in 
the performance of their duties to the public. 

In view of these considerations, it seems to me that 
Congress would do very wisely to authorize the Gov- 



SCIENTIFIC " STUDIES," LETTERS, ETC. 345 

ernment to have a series of experiments made, under 
the charge of a board of skillful engineers, for the 
purpose of ascertaining those results, which the 
increased facilities of the engineering art would now 
render attainable. 

I have the honor to forward with this a copy of 
the report made bv Chief Engineer Isherwood and 
others of the experiments made at Sandy Hook in 
November last, to which allusion has been made. A 
miore full report by Professor Thurston, illustrated by 
drawings, has been published in the Franklin Institute 
Journal. 

I also forward the draft of law, or joint resolution, 
which would enable the President, through either of 
the executive departments, to institute the experiments 
v^hich I have indicated. 

I have taken an interest in this subject, and have 
presumed to address you upon it, under the belief that 
the experiments proposed would have more effect in 
producing the adoption of safeguards against the 
disasters continualh" occurring from boiler explosions 
than any regulations which can at present be made. 
The whole steam transportation of the country and 
of the world, and, indeed, the entire commerce of 
the world, is deeply interested in the ascertainment of 
the precise laws and exact data on which to calculate 
and provide for these disasters. 

Respectfully, your obedient servant, 

(Signed) JOS. P. BRADLEY. 



346 MISCELLANEOUS WRITINGS. 

AN ACT TO AUTHORIZE INQUIRIES INTO THE 
CAUSES OF STEAM BOILER EXPLOSIONS. 

Be it enacted, etc. 

Section 1. That the President of the United 
States be, and he is hereby, authorized to cause such 
experiments to be made and such information to be 
collected as, in his opinion, may be useful and important 
to guard against the bursting of steam boilers ; and 
that he be required to communicate the same to Con- 
gress ; and that the sum of one hundred thousand 
dollars be appropriated for the purpose of this act. 



RECURRENCE OF ICE PERIODS IN THE 
NORTHERN HEMISPHERE. 

The absolute zero of temperature is — 459,13 Fahr- 
enheit, or 491.13 below the freezing point. This fact 
is deduced, amongst other things, from the law of 
expansion of gases, which is -t^iUES part of their 
volume at 32° Fahrenheit for each additional degree 
of temperature. Therefore the freezing point, or 32° 
Fahrenheit, is 491.13° above absolute zero. Suppos- 
ing this to be the mean temperature, in New Jersey, on 
the first of Januarv^, when the earth is now in its 
perihelion, what would it be if the earth were in its 
aphelion instead of its perihelion on the first of 
January ? This would depend on the relative distance 
of the earth from the sun at its perihelion and 
aphelion, and would be inversely as the squares of 
those relative distances. These relative distances are. 



SCIENTIFIC " STUDIES," LETTERS, ETC. 347 

for perihelion 89,897,000 miles, and for aphelion 
92,963,000 miles, so that the absolute heat derived 
from the sun in those two positions would be as 
(92,963)^ to (89,897)\ Thus, (92,963)^ (89,897f ; 
491.13° : 459.27°, showing a difference of 31.86°. 

This would make the temperature of our winters 
about 32° less than at present. Ten thousand five 
hundred years ago the earth was in aphelion on the 
1st of January. 



STANDARD OF WEIGHTS AND MEASURES. 

The English yard is the standard of measure in 
the British Empire and in the United States. The 
metre is the standard in France and in several Euro- 
pean countries. The ratio between them is as 1 to 
1.093633 ; or as 36 inches to 39.370791 inches. The 
yard is the more convenient of the two, corresponding 
better to the natural pace, and to the height and 
fathom of a man, two yards being equal to the height 
and to the fathom (or extension of the arms) of a man of 
full height. It can also be more easily reconstructed 
if the standard measuring rod should be lost. By 
Act of Parliament of Great Britain, it is declared 
that if the standard yard shall be lost, or destroyed, 
it shall be restored by making a new standard yard, 
bearing the proportion to a pendulum vibrating 
seconds of time in the latitude of London, in a vacuum, 
and at the level of the sea, as 36 inches to 39.1393 
inches. This is the actual relation between them, and 
a new standard yard exactly equal to the present one 
could be constructed from a pendulum. But if the 



348 MISCELLANEOUS WRITINGS. 

standard metre should be lost or destroyed, it could 
not possibly be re-constructed, except in the same wa}'. 
In theory it is supposed to be one ten millionth part 
of the length of the meridian passing through Paris 
from the equator to the pole. The length of this 
meridian was ascertained by estimation in French 
toises, made from several measurements of arcs in 
different countries. There is no certainty that a new 
estimation would be the same. Besides, the estimation 
itself is based on an old standard— the toise. The 
standard metre was made up of so many parts of a 
toise. It depends on the toise, and that has gone into 
disuse, and had no natural standard to govern its 
length. The certainty and uniformity of the metre, in 
fact, depends upon some one metalic bar in Paris, just 
as the certainty and uniformity of the yard depends, 
in practice, on another metalic bar in London. Destroy 
those metalic bars, and both the yard and the metre 
would have to be reproduced in precisely the same way. 
The best standard, after all, would be the distance 
between tv\ro bolts driven into the face of some rock, 
and repeating the process in every civilized country, and 
in many places. These bolts being faced with a non- 
corroding metal, and having fine lines drawn perpen- 
dicularly through the centres, each country could 
measure the distance between these lines with its 
own standards. The distance might be sufficiently 
large to avoid the multiplication of errors, say ten, 
twenty or thirty feet, so as easily to be transferred 
from one country to another by means of a single rod. 
In this way a uniform measure could be preserved in 
the world for many ages ; and each nation could, as 
occasion required, correct its own standard thereby. 



SCIENTIFIC " STUDIES," LETTERS, ETC. 349 

It would undoubtedly be a matter of great con- 
venience to have uniform weights, measures and money 
throughout the world, but it is a thing of very 
difficult accomplishment, each nation being wedded to 
its own long-used standards. There is no reason on 
earth wh}^ the English-speaking world should abolish 
their standards and adopt the French. For me, it 
excites my disgust and indignation to see our sciolists 
in their -written articles using the metre instead of the 
foot and yard. Our literature and our statistics for a 
thousand years are pervaded with references to our 
own standards. Our ideas are all graduated to them 
by habit and usage. Why should we be frightened 
from our propriety by a set of French enthusiasts, 
who wish to have the general regulation of all things ? 
If their metre had anything on earth to recommend it 
as a standard in preference to our yard, there might 
be some reason for joining in the cry for the Metric 
System. But it has not a single thing to give it such 
a recommendation. The decimal division, if that is 
thought desirable, is as applicable to our standards as 
to the metre. We all use decimals every day of our 
lives. I concur entirely in the views expressed by Sir 
John Herschel in his essay on the Yard, the Pendulum 
and Metre, and I hope that our volatile and change- 
loving people will never consent to the adoption of 
the French System. 

July 3d, 1880. 



350 MISCELLANEOUS WRITINGS. 

THE FORCE OF WATER AS USED IN HYDRAULIC 
MACHINERY IN MINING. 

The circumstances which led to this pubhcation 
are detailed in the following letter from Mr. Justice 
Field to ex-United States Senator James G. Fair : 

Washington, D. C, February 23, 1891. 
Hon. James G. Fair. 

Dear Sir : Last evening I dined at General Scho- 
field's and met the President. There were a number of 
distinguished people present besides the President, 
among whom were the Chief Justice, the Speaker of the 
House of Representatives, Senators Sherman, Stanford 
and McMillen, Secretary of the Treasury, Windom 
and Mr. McKinley and Mr. Wheeler of the House. 
During the evening the conversation turned upon 
California and her wonderful products and mining 
operations. I took occasion to sjDcak of hydraulic 
mining and the v^'onderful manner in which the hills 
are torn down by hydraulic machinery. I stated that 
I had understood you to say that such was the force 
of the water thrown through a hose, when it came 
from one to two hundred feet in height, that boulders 
weighing half a ton could be held* (moved) by streams 
playing upon them, and that the force was sometimes 
so great that it would be impossible to cut the stream. 
At this statement much surprise was manifested, and 
I thought a smile of incredulit}'- passed over the 
features of the guests. Seeing this, I said that I would 
prove the facts stated in a communication to them. 

Now, I write to you for the information desired. 
Please send me some carefully prepared statistics as to 



SCIENTIFIC "studies," LETTERS, ETC. 351 

hydraulic mining, particularly as to the power exerted 
by a column of water thrown by such machinery, and 
as to how large boulders can be held* (moved) by the 
force of the stream, and on the point whether it is true 
that the force of the stream is sometimes so great that it 
cannot be cut. I would be much obliged if you could 
give me full particulars in regard to these matters in a 
communication that I can use, if necessary. I propose 
to send a letter to each one of the guests, stating the 
facts, and thus remove the incredulity -vvdiich they 
evinced when the statement was made by me. I want 
to show that it was only the result of a want of 
experience in hydraulic mining, their situation being 
somewhat like that of the King of Siam, who was 
offended when an English visitor told him that in his 
country w^ater was often so hard that he could walk 
upon it. 

Please let me hear from you at your earliest con- 
venience, and believe me to be, 

Very sincerely yours, 

(Signed) STEPHEN J. FIELD, 

Not having received an answer from Mr. Fair, on 
account of his illness, Mr. Justice Field wrote a similar 
letter of enquiry to Augustus I. Bowie, Esq., of San 
Francisco, the author of a work of great learning and 
merit on ''Hydraulic Mining"; and also another 
letter of the same character to Mr. Christy, Professor 
of Mining and Metallurgy in the University of Cali- 
fornia. 



* "Moved" instead of " held " was what was meant; as the very 
force striking the boulder would put it in motion instead of keeping it in 
repose, unless special preparation were made for the impact, as stated in. 
the letter of Prof. Christy. 



352 MISCELLANEOUS WRITINGS. 

Subsequently a letter was received from Mr. Fair, 
enclosing one on the subject from Mr. Glass, who for 
sixteen years had been superintendent of a hydraulic 
mine in that State, and also the following 

LETTER FROM MR. JUSTICE BRADLEY OF THE U. S. 
SUPREME COURT. 

Washington, D. C, March 5, 1891. 
Dear Judge Field : 

The velocity of water issuing from a pipe is, of 
course, due to the pressure it receives — natural or 
artificial. If derived from a natural head of water, it 
is proportional to the square root of such head or 
height. If it were not for the resistance from the 
friction of the pipe and contraction of the vein as it 
issues from it, the velocity would be eight times the 
square root of the height in feet, or, more accurately, 
8.025 times. The resistance varies according to circum- 
stances. If the water has to be carried a long distance 
in the pipe, or if the pipe is rough or crooked, it is 
considerable. Supposing the reservoir near, and the 
pipe favorably arranged, the velocity will be 75 per 
cent, of the theoretical amount, or six times the square 
root of the height. Thus, suppose the head to be 
450 feet ; its square root is 21.2, multiplied by 6, it 
equals 127.2 feet velocity per second. If the cross- 
section of the pipe were equal to one square foot, this 
velocity would produce a discharge of 127.2 cubic 
feet per second. A round pipe, 6 inches in diameter, 
having a cross-section of only .19635 square feet, 
would discharge only 24.975 (say 25) cubic feet per 
second. 



SCIENTIFIC "studies," LETTERS, ETC. 353 

But this 25 cubic feet issues with a velocity of 
127.2 feet. MultipHed together, it shows an effective 
force, or momentum, of 3,180 cubic feet moving at 
the rate of 1 foot per second. As each cubic foot of 
water weighs 62^2 pounds, the above result is equiva- 
lent to 198,750 pounds, moving 1 foot per second. 
This is what is meant by foot pounds. 

A horse-power is equal to 33,000 foot pounds per 
minute, or 550 per second. Therefore, dividing 
198,750 by 550, we have 461/y horse-power. 

The force of soft substances, when thrown with 
great velocity, almost exceeds belief. A gun wadding 
may be made to perforate a plank. An injector has 
been invented (by a Mr. Jeffards, I believe) for injecting 
water into a locomotive boiler, in which the pressure 
often exceeds 100 pounds to the square inch ; and yet, 
by this instrument, a small, swift stream of water is 
injected into the boiler with perfect ease. I can well 
believe all that you say with regard to the tremendous 
force of streams issuing from the pipes of the miners 
under a large head of water. Of course they would 
produce instant death if directed against a man stand- 
ing near, and would probably cut his body in two. 

Yours sincerely, 

(Signed) JOSEPH P. BRADLEY. 



RELIGIOUS AND MORAL. 



ESSAYS AND LETTERS. 357 

JUDGE BRADLEY ON RELIGION IN THE CONSTI- 
TUTION. 

Among the letters received bj Rev. Mr. McAlister, 
Secretary of the Association which recently held a 
convention in Cincinnati for the purpose of urging an 
amendment to the Constitution, which shall acknowl- 
edge God, was the following from Judge Bradlej^ of 
the U. S. Supreme Court. It shows his own convic- 
tion of the necessity of religion as the basis of civil 
government, but it must reside not in the written 
Constitution, but in the people themselves, and cannot 
be forced into them by legislation : 

Washington, December 7, 1871. 
Rey. D. McAlister. 

Dear Sir : Yours of the 2d instant has been 
received, requesting me to unite in the call of a conven- 
tion favorable to an amendment of the Constitution 
of the United States, which shall acknowledge God as 
the author of the nation's existence and the source 
of its authority, Jesus Christ as its Ruler, and the 
Bible as the foundation of its laws and the supreme 
rule of its conduct. As you have done me the honor 
of writing me a special letter on the subject, I feel 
bound in courtesy to answer it. 

I have never been able to see the necessity or 
expediency of the movement for obtaining such an 
amendment. The Constitution was evidently framed 
and adopted by the people of the United States with 
the fixed determination to allow absolute religious 
freedom and equality, and to avoid all appearance 
even of a State religion, or a State endorsement of 



358 MISCELLANEOUS WRITINGS. 

any particular creed or religious sect. Various oaths 
of office and of fidelity to the Constitution are pre- 
scribed in the instrument itself, but always coupled 
with an alternative privilege of making an affirmation 
instead of an oath. And after the Constitution in 
its original form was adopted, the people made haste 
to secure an amendment that Congress shall make 
no law respecting an establishment of religion, or 
prohibiting the free exercise thereof. This shows the 
earnest desire of our Revolutionary fathers that religion 
should be left to the free and voluntary action of the 
people themselves. I do not regard it as manifesting 
any hostility to religion, but as sho^wing a fixed 
determination to leave the people entirely free on the 
subject. 

And it seems to me that our fathers were wise ; 
that the great voluntary s^^stera of this country is 
quite as favorable to the promotion of real religion as 
the systems of governmental protection and patronage 
have been in other countries. And whilst I do not 
understand that the association which you represent 
desire to invoke any governmental interference, still 
the amendment sought is a step in that direction 
which our fathers (quite as good Christians as our- 
selves) thought it wise not to take. In this country 
they thought they had settled one thing at least, 
that it is not the province of government to teach 
theology. 

Therefore, whilst no person in your association 
places a higher estimate than I do on the great 
importance and absolute necessity of religious training 
and religious convictions to the stability of any gov- 
ernment ; I do not believe that the end will be at all 



ESSAYS AND LETTERS. 359 

subserved by the proposed Constitutional amendment. 
Religion, as the basis and support of civil government, 
must reside, not in the written Constitution, but in 
the people themselves. And v^e cannot legislate religion 
into the people. It must be infused by gentler and 
wiser methods. 

Respectfully, your obedient servant, 

JOSEPH P. BRADLEY. 



CHRISTIANITY, ITS IMMORTALITY. 

A noble evidence of the living and inextinguishable 
truth of Christianit}^ is the fact of the Reformation. 
That Reformation was but an emanation of the spirit 
of Christianity itself. Other religions have forever 
gone on in the accumulation of ceremonies and super- 
stitious observances, and never exhibited any innate 
principle of life sufficient to throw off the deformities 
so superinduced upon them. If they have felt the 
benefit of a correcting hand, that hand has been 
directed and applied by the progressive influence of 
the sciences and civilization. But the Christian religion, 
kindled by the fire of its own never-dying truth as 
preserved in the Holy Scriptures, the flame that rose 
so luminously over the nations of the West in the 
middle of the sixteenth age. 

December 2, 1838. 



360 



MISCELLANEOUS WRITINGS. 



NOAH'S ARK. 

This structure was 500 feet long and 75 in width, 
and consisted of three stories. This would admit on 
each story four rows of stalls lengthwise of the ark, 
each 14 feet in depth, leaving two passages the wdiole 
length 9% feet in width, according to the annexed 
fiofure. 























50C 


Feet in 


Length 


. 
























































































Passage QVs Feet. 




































































































































Passage 9V2 Feet. 










































1 























500 Feet in Length. 



14 Ft. 

9V2 Ft. 

14 Ft. 

75 Ft. 



Each row divided into 62 stalls would give them 8 
feet in width — this would be sufficient for each species 
of animal on an average, and consequently would 
accommodate 248 species of animals. Gleig says that 
there have been estimated from 200 to 250 different 
species of quadrupeds. The Editor of Buffon's Nat. 
Hist, says that some minute philosophers even go so 
far as to make 400 species. This appears to be extrav- 
agant. See Raleigh's History of the World. Raleigh, 
following Budaen's, makes only 264 individual animals 
in the ark, 89 species — but this was in the beginning 
of the nineteenth century. 

Now, v^e may suppose that the contents of the 
ark were distributed somewhat in this way. The 



ESSAYS AND LETTERS. 361 

reptiles and the provisions for the beasts in the lower 
storj, the beasts on the second story, and the birds 
and Noah's family in the third story, together with 
their provisions. It is supposed that there were only 
three kinds of beasts which went in by sevens — cows, 
sheep and goats, and two kinds of birds — turtles and 
pigeons, as these were the only animals used in sacri- 
fices. Vid. Brown's Diet., Title " Beast,'' and Bokart's 
Hierozoicon, in w^hich latter wrork the Zoology of the 
Bible is ably discussed. 

Noah went into the ArK a^out the 1st of November, 
The Hebrew year for civil purposes commenced with 
the month Tisri, which was the month or moon that 
commenced nearest to the Autumnal Equinox. 



THE MORAL FACULTY. 

The Moral Faculty is that power of the mind 
which perceives, approves and obeys the right as dis- 
tinguished from the wrong in actions. It has three 
distinct functions, as indicated by the definition — per- 
ception of what is right ; approval of it ; and deter- 
mination to follow it. 

The first of these, perception, is sometimes called 
the moral sense, moral consciousness, or, simply con- 
science ; the second, approval, is called moral disposi- 
tion or rectitude, the third is called the will. 

A highly civilized and Christian society, like ours, 
possesses so many means of moral instruction, and so 
much moral light, that it is not difficult in most cases 
to know what is right and what is wrong. The 



362 MISCELLANEOUS WRITINGS. 

conscience becomes insensibly educated to a high 
standard. The lessons of the Bible as expounded in 
religious assemblies, in schools and in families ; the 
ethical teachings of our laws and literature ; of our 
daily intercourse with others and our own experience, 
leave little to be sought in the way of instruction, 
except amongst the very poor and destitute classes. 
Still, some men are gifted with a keener sense of right 
and wrong than others. 

The second function, moral approbation or inclin- 
ation, is not so generally depraved as some imagine. 
Most men approve right rather than wrong ; would 
rather do right than wrong, if other motives did not 
intervene. A pure love of evil is not an innate senti- 
ment of the human heart. Men do evil not for the 
love of evil, but because seduced by appetites and 
passions. Wealth, power, sensual pleasure often 
present strong temptation to adopt devious ways for 
their attainment. 

And here comes in the proper office of the will, the 
third function of the moral faculty. It is not so much 
for lack of knowledge of what is right, nor of 
appreciation of the right, that men do wrong ; but 
the great source of evil-doing lies in the will. The 
w^ill is not strong enough to resist temptation ; to 
wrestle with the appetites and passions. Here is the 
weak point of human nature — the strength of the 
passions and the feebleness of the will to resist them. 
With the strongest desire to do right, with even a love 
of the right, the will often weakens before temptation, 
like wax before fire, and straightway w^rong is com- 
mitted, followed by sorrow and remorse of conscience. 

The great problem, therefore, for every one to solve 



ESSAYS AND LETTERS. 363 

is, how to subdue his passions and strengthen his will 
to act rightl}^ The two things, though mutually 
concerned in the formation of the moral character, are 
not reciprocal. A strong will may co-exist with 
fierce passions, and keep them in subjection, but the 
true Christian soldier will guard well both sides of the 
fort. He will endeavor to subdue his passions, and, 
at the same time, to strengthen his will power. 

The power of the will is very different in different 
persons by natural constitution. The will is as 
much a natural faculty in each individual as memory 
or imagination or any other innate power, in which 
men differ as much as they do in stature and features. 
Hence, if the will is naturally weak, or inclined to 
weakness, it requires great and continued attention 
and habitual effort to bring it to a condition of per- 
manent improvement in strength and firmness. Lax 
measures will never succeed. The least indulgence of 
weakness throws all back again to be recovered by 
repeating the same painful efforts as before. In this 
respect a naturall}^ weak will is like drunkenness, 
which, when it has once subdued a man to its bondage, 
cannot be thrown off by fitful efforts at reformation ; 
but must be utterly crushed out and destroyed by a 
firm and persistent rejection of every solicitation and 
approach. 

An indispensable means of fortifying the will is the 
adoption of fixed principles of action, to be adhered 
to without swerving ; principles based on truth and 
right. Anything that for an instant solicits, or even 
suggests, a departure from these principles should be 
instantly repelled without allowing the indulgence of 



364 MISCELLANEOUS WRITINGS. 

a thought that it can be entertained for a moment. 
The importance of having settled in one's mind a 
system of fixed principles of conduct cannot be over- 
estimated. 



PRECEPT AND EXAMPLE. 

1. In morals, precept is nothing, example is every- 
thing. A really good and noble character once clearly 
discerned in its living active force, is a better incentive 
to virtue than all homilies. But as such a vision is 
not often vouchsafed ; as men do not thus ordinarily 
reveal themselves to others ; the nearest approach to 
the same thing is the daily and hourly life and conduct 
of such a person ; by which, as by letters and signs, 
the true character is gradually revealed and made 
known, imprinting itself, like a portrait, upon the 
minds and hearts of others. 

2. In human life opportunity is everything. Suc- 
cess depends upon opportunity. Acquirements, learn- 
ing, aptitude, practical ability, greatness, depend on 
opportunity. A library placed away in a dark or 
cold room, or on inaccessible shelves, will benefit a 
man or his family but little. But if ranged around 
the family rooms, where all is cheerful and pleasant, 
where the family live, and within reach of the hand, it 
will become a rich treasure and an indispensable 
luxury. 

The best legal talents, without opportunity for 
their exercise, will rust and decay ; without oppor- 
tunity for their display, they will disgust their 



ESSAYS AND LETTERS. 365 

possessor. Life consists in hope, and a consciousness 
of being of some use in the world. Without these it 
is a living death. Without opportunity, hope and joy 
are strangers to the yearning soul. 

3. The active employment of the faculties alone 
can make us useful or happy. Hence it is that 
adversity is a rich soil v^hich ever produces fruitful 
results in character and ability. It puts a young man 
upon his mettle, brings out v^hat is excellent and good in 
him, and makes him a really great and noble character. 
But prosperity is attended with ease and indolence as 
inseparably as the shadow follows the sun. Thus it 
happens that our greatest and best men, as well as 
our most wealthy and successful, are constantly 
springing up from the lower or middle classes of 
society. Thus it also happens that troublous times 
in the history of a nation almost invariably produce 
examples of great talent and heroism. And nothing, 
on the other hand, is more sure to sap the foundations 
of national strength than habits of luxury and ease 
indulged in by its yoimg men. Every American, as a 
matter of honor and just pride, ought to have a call- 
ing—a something to do ; and he ought conscientiously 
to follow it, not only on account of the example, but 
on his own accont. 

4. Those who place religion in the belief of certain 
theological dogmas mistake its true character. Christ 
placed it in love to God and man. John held these to 
be inseparable. *' If a man say he loves God and 
hateth his brother, he is a liar." James declared that 
pure religion is this, to visit the fatherless and widow 
in their affliction and to keep himself from the world. 
Paul said, "There are three things, faith, hope and 
charity, and the greatest of these is charity." 



366 MISCELLANEOUS WRITINGS. 

5. The Greek expression for human perfection, To 
KaXov, is full of deep meaning. To say and to do just 
what is proper on every occasion of life is indeed per- 
fection, if not greatness. It implies being equal to 
every occasion, and meeting it accordingly. If this is 
not true greatness, what is ? He who is competent to 
the age and country in which he lives ; silent when 
silence is proper ; eloquent, when eloquence is needed ; 
energetic in action, when action is required ; always 
accomplishing, always meeting the demands of the 
time ; is either the truly great man, or better than a 
great man. 

6. It is the duty and should be the pride of every 
American to have an honest and useful calling, and to 
pursue it. I care not what it is ; be it honorable and 
faithfully pursued. This is necessary to the interest of 
the Commonwealth, and to the happiness and virtue 
of the individual. It should also be necessary to the 
entre of society. Elegant loungers should be as coldly 
received as tipplers and gamblers. But whilst this is 
our beau-ideal of a healthy social life, it is perhaps too 
much to expect of ordinary human nature. 



EXAMPLE. 



An act of kindness to another does more to produce 
a kind feeling on his part than the finest lesson in 
words. Kindness produces kindness ; sympathy, sym- 
pathy ; anger, anger ; and every emotion felt and 
exhibited is met responsively by corresponding emo- 
tions in others. This is the sentiment which the Jewisl? 



ESSAYS AND LETTERS. 367 

interpreters attribute to the proverb: "As in water 
face answereth to face, so the heart of man to man." 
The facts of human consciousness and experience are 
the safest interpreters of reHgious and moral formulas. 
For those formulas have generally been attempts to 
express such consciousness and experience. And actual 
manifestations of character make a far deeper impres- 
sion than set moral phrases or the best composed 
lessons. Actions speak louder than words. Just as 
in the natural world, or in matters of science, a fact 
actually observed is rarely forgotten, whilst verbal 
lessons conveying the same facts pass unheeded, so in 
the moral world, real exhibitions of character, dispos- 
ition or principle affect the heart more deeply, and the 
conduct more durably, than any verbal teachings 
can do. Hence Christ profoundly enjoins, ** Let your 
light so shine before men that they may see your good 
works, and glorify your Father which is in heaven." 



REFORMERS. 



Great Reformers are such because they are great 
thinkers, and hence, in advance of their times. A few 
great seminal thoughts affecting practical life generally 
characterize their teachings. These are often repeated 
in conversations and presented in different points of 
view, until their hearers become perfectly imbued with 
their spirit. Their written works are generally the 
least important part of their power, which arises 
more from their personal influence, and the intensity 
of their conceptions and utterances. Their most pow- 



368 MISCELLANEOUS WRITINGS. 

erful and influential sajangs are recorded by devoted 
followers, and thus preserved for the guidance of future 
ages. Witness the remains of Confucius, which 
were collected and preserved by his disciples. " The 
Master said," thus and so, is the style in which 
they read. Socrates wrote no book. His scholars 
reported his conversations. Jesus Christ's discourses 
are all that we have of him. Mahomet's chapters of 
the Koran were oracular discourses uttered at various 
times. Luther wrrote, it is true, but his great power 
lay in his talking and preaching, and in his bold 
enunciations of grand truths. His " Table Talk," so 
assiduously preserved by his companions, show the 
man and his power far better than any of his treatises. 
The Reformer was not Luther, the man of the closet, 
but Luther, the man of the v^orld. The secondary 
spirits of the Reformation, Melancthon, Calvin, etc., 
wrote and acquired greatest repute by their writings. 
And so I might go on with the list. 



THE LORD'S PRAYER. 

The Lord's Prayer is an Epitome of Christianity, 
as taught by Jesus Christ. ** Our Father in Heaven,^^ 
teaches us to address our petitions immediately to the 
Supreme Being, without interlocution or mediation — 
without the aid of Priest or intercessor. Whether poor 
or rich, vv4se or foolish, we are all equal before him 
whom we address. It teaches that He is One ; that 
He is our Father, consequently, that He cares for us, 
and will protect and bless. 



ESSAYS AND LETTERS. 369 

Where, when or by whom, before Jesus Christ, was 
it taught thus ? Fatherhood of God — Brotherhood 
of Men. *' Hallowed be thy name.^^ That is, may 
w^e be imbued with the deepest reverence for Thy 
being and character. 

" Thy Kingdom come, Thy will be done on earth 
as it is in heaven.^ ^ 

This is an aspiration for God's reign in earth — over 
the hearts and lives of all men ; a longing for universal 
truth, justice and love. 

" Give us this day our daily bread,'^ that is all, not 
Power, Wealth, Glory, but that which suffices for our 
sustenance and comfort and elevation in knowledge 
and usefulness. 

^^ Forgive us our debts as we forgive our debtors.^^ 

^^ Lead us not into temptation, but deliver us from 
evil:' 

That is, remit, overlook, forgive, our past offences, 
and help us to offend no more. Remove temptation 
from us. Keep us from falling. 

Here is the whole essence of the Christian religion. 

1. God's existence, fatherhood and loving kind- 
ness to all, and hence His attention to our wants and 
prayers. 

2. The equality and brotherhood of all men, and 
hence the duty of Universal Charity. 

3. The prime importance of our spiritual nature, 
and hence the secondary importance of sensuous and 
material things. 

4. The need of God's forgiveness and help, and 
hence the hopelessness of an unforgiving spirit. 

In reason we can only ask forgiveness as we for- 
give. 



370 MISCELLANEOUS WRITINGS. 

THE BIBLE. 

As a book of pious meditation and exercitations 
on morality and religion, the Bible is a valuable repos- 
itory. The Jewish intellect was ever keen and its 
religious insight profound, tracing with remarkable 
accuracy the springs of action and the respective con- 
sequences of immoral and virtuous conduct. 

The devotional fervor of the Psalms, the senten- 
tious wisdom of the book of Proverbs, and the pro- 
found reflections of Ecclesiastes on the vanity of life 
are, in their several ways, superior to any similar 
productions of other nations. The sublime emotions 
of the soul when conscious of a Divine Presence 
and the stem conclusions of Reason on human char- 
acter and destiny, cannot be fitted to more beautiful 
or expressive forms of imagery and speech. The 
prophetical writings also abound with sublime pas- 
sages of exalted moral exhortation and instruction, as 
well as vehement denunciations of vice. Add to these 
the simple and searching lessons of faith, sincerity, 
purity of heart and universal charity of the New 
Testament, and we shall find sufficient foundation for 
the moral power exerted by the Christian religion 
upon the nations which have been subjected to its 
influence. The theological dogmas and articles of 
faith which have been attached to it, whether from 
the first, or by subsequent ecclesiastical authority, 
have not affected its genuine power over the hearts 
and lives of men as an instrument of moral elevation, 
civilization and refinement. 

This much may be said of the value and influence of 
the Bible, without entering into the question of special 



ESSAYS AND LETTERS. 371 

revelation and miracles, which have so much agitated 
both the curious inquirers and the superstitious 
devotees of the Christian world. And this view of 
its office and mission is consistent with the free and 
intelligent use of all similar aids to virtue and spiritual 
elevations to be found in the sayings of the great 
and good of all nations and times. It is an undue 
exaltation of a single book which places all others in 
the background as utterly'- worthless. The Caliph 
Omar committed this error when he ordered the burn- 
ing of the Alexandrian library, on the ground that if 
it contained more than was in the Koran it could not 
be true, and if it contained less, it was useless. The 
gathered wisdom of the ages is the common inherit- 
ance of mankind, and every scattered ray contributes 
to the full blaze of modem enlightenment. The skil- 
ful eclectic will find many gems of truth in the utter- 
ances of Menu, Boudha and Confucius, and much 
sound ethics in the Greek and Roman philosophies. 
To despise them is to throw away a large portion of 
the legacy of antiquit}^ It would be equal folly to 
reject the wisdom of the moderns. 

The difficulty is, that there is a strange tendency in 
human nature to adopt some one authoritative stand- 
ard and blindly to rest on that, rejecting everything else. 
This tendency sometimes goes so far as to adopt some 
man or class of men to decide all matters of faith and 
duty. The generality of mankind prefer implicitly to 
follow ; and hence they are ever ready to worship 
some saint in religion and hero in power, or some one 
or more whom they imagine to be such. But a "wise 
man is he who tries all things and holds fast to that 
which is good. 

July 7, 1875. 



372 MISCELLANEOUS WRITINGS. 



TRANSLATIONS. 

Translations are made upon different principles ; 
some are very literal, preserving the idioms and 
arrangement of the original text ; others are so free 
and paraphrastic that the original work is hardly 
recognized. It is singular that the two greatest Bible 
translators in modem times, Luther and Tyndale, 
adopted, independently of each other, a most excellent 
principle, which greatly contributed to the popularity 
of their respective works ; and this was, to render the 
Bible into pure vernacular speech adapted to the com- 
mon understanding, and avoiding all idiomatic pecul- 
iarities of the original tongues, and all unnecessary 
ecclesiastical and scholastic terms. They thus produced 
for their respective nations, German and English, the 
People's Book, which not only addressed itself to the 
popular heart, but became the standard of the lan- 
guage. "If God spare my life," said Tyndale, '*ere 
many years I will cause a boy that driveth the plow 
to knov^ more of the Scriptures than the Pope does." 
" The words of the Hebrew tongue," said Luther, 
" have a peculiar energy. To render them intelligently 
we must not attempt to give them word for word, 
but only aim at the sense and idea. In translating 
Moses I made it my effort to avoid Hebraism ; it was 
an arduous business." The revisers of King James's 
time strove to make the translation more literal, and 
in doing so often injured its beauty and force. 



ESSAYS AND LETTERS. 373 



THE ENGLISH TRANSLATION OF THE BIBLE. 



HISTORICAL LECTURE BY JOSEPH P. BRADJ EY. 



Joseph p. Bradley, Esq., delivered an interesting 
lecture on the ' ' History of the English Translation of 
the Bible," in the lecture room of the North Reformed 
Dutch Church, last evening (December 26, 1867). The 
easy colloquial style which the lecturer assumed gave 
additional interest to his discourse and made the enter- 
tainment thoroughly enjoyable. He first stated, by way 
of introduction, that it was undoubtedly the intention 
of the Almighty that the Bible should be given to 
every people in their own language, that they might be 
fully able to understand it. This, certain orders of the 
clergy for ages refused to acknowledge, being desirous 
of making their professional class necessary as inter- 
preters between God and the people and of preserving 
the mystery which was necessarily connected with the 
Word of God in an unknown tongue. He then briefly 
considered the history of the English language and 
from -what dialects it was formed, and what progress 
had been made in the Anglo-Saxon literature, in the 
Norman, and finally in the two combined, or the 
English. In the Saxon, there were five or six transla- 
tions of the four gospels, in the Norman there was 
only one. 

The latter was not much used, as the lower class 
of the people knew but little of what was to them a 
foreign dialect. In the century in which the Norman 
and Saxon became united, John Wickliffe lived To him 
belongs the honor of the first English translation. By 



374 MISCELLANEOUS WRITINGS. 

his own labors in 1360 he had completed the New 
Testament ; in 1380, with the aid of others, the whole 
Bible was completed. Printing not having been 
invented, the circulation of this was of necessity verj 
slow. There are now extant over one hundred copies 
of the manuscript in different parts of England ; and 
the Bible has been printed within a few years past as a 
literary curiosit}' to show the condition of the language 
in the fourteenth century. Mr. Bradley read the fifth 
chapter of Matthew and the Lord's Prayer from 
Wickliffe's translation. 

During the fifteenth century England was under 
Popish influence, and attempts were made to repress 
the translations which had already been made. About 
the middle of the century, in 1452, the Greeks were 
driven from Constantinople and the learning which 
they had centered there was spread over the western 
world. English literature received new accessions by 
the settlement of some of the Greek scholars as pro- 
fessors in their institutions of learning. This, with 
other favoring causes, gave an impetus to mind, and 
produced a general awakening of the nations— called 
by the French, the Renaissance, and by the English and 
Germans, the Reformation. In 1517 Luther set in 
motion the ball which never rested in its course till 
the thralldom of the dark ages was broken. William 
Tyndale Vv^as one of those men in England in whose 
breast the fire of pure religion burned. 

He was a profound scholar, and felt an ardent desire 
to give to his countrymen the unadulterated word of 
God, which he loved so much ; and in 1520 he declared to 
an eminent divine of the old school, " Ere many years 
I will cause a boy that driveth a plow to know more 



ESSAYS AND LETTERS. 375 

of the Scripture than you do." And he lived to make 
his prophecy good. He soon afterwards commenced 
the work of translating the Scriptures, as Wickliffe's 
translation was almost unintelligible to the common 
people at that time, owing to the changes in the lan- 
guage. In 1525 the New Testament was completed. 
Tyndale "was compelled to go to Germany to have it 
printed, as any attempt at that time in England to 
circulate the Scriptures would have been punished with 
martyrdom. In Germany he commenced a translation 
of the old Testament, and had proceeded as far as to the 
end of Chronicles when he was apprehended and put 
to death. John Rogers, an Englishman residing in 
Antwerp (the same who afterwards suffered martyr- 
dom under Queen Mary), undertook the work of revis- 
ing and printing the translation. When he had 
completed Tyndale's vv^ork — the whole of the New 
Testament and the Old as far as Chronicles — he 
depended on Coverdale's translation for the remainder, 
which had been printed but not yet published. Cover- 
dale had made free use of Tyndale's translation as far 
as it had been published, in making his own, and 
Rogers procured the use of his (Coverdale's) in those 
portions of the Bible which Tyndale had not translated. 
Coverdale's version was published in England about 
the same time that Tyndale's was, but never obtained 
the public favor. 

In 1537 Rogers completed his work, and some 
London publishers had the good fortune to get the 
royal license for its dissemination in England. But 
Tyndale, its author, had in the previous October 
suffered martyrdom for his glorious work. His Bible, 
however, thus introduced into England, not under his 



376 MISCELLANEOUS WRITINGS. 

name, but under the fictitious name of Thomas 
Matthew, met an auspicious reception, and became 
widely circulated. It has always gone by the fictitious 
name of Matthew's Bible, and hence the true author 
has never received the credit due for such a noble 
legacy to the people and language of England. This 
is the Bible which, with slight revision, we have at 
this day, and which is generally accredited to King 
James's translators. Their work, however, though a 
good work (as we shall see hereafter) was a mere 
work of revision, and not translation, and the great 
body of the English Bible, as they left it, w^as given to 
the English nation by William Tyndale, and in a subor- 
dinate degree, by Coverdale, it is but just to assign to 
them the credit of the translation. Other nations had 
the Bible translated into their languages at nearly the 
same time. A German translation was made in 1480 ; 
it was not, however, a perfect one, and in 1532 their 
present translation, made by Luther, appeared. A 
Dutch translation was made in 1526, a Lower Saxon 
in 1533 and a German Swiss in 1529. 

At the conclusion of the address the audience 
requested that the historj^ of the translations be con- 
tinued at an early day. Mr. Bradley consenting, 
Thursday, the 9th of Januarj^, was appointed. 



ENGLISH TRANSLATION OF THE BIBLE (II). 

The history of this translation by Christopher 
Anderson is exhaustive of the subject, except in regard 
to the sources of the various revisions. A critical 



ESSAYS AND LETTERS. 377 

examination of the original translation and of each 
revision thereof, compared with the critical apparatus 
which each editor had to aid him, would reveal not 
only the progress made at each step, but the sources 
from which every improvement or change was derived. 
The article " Version Authorized," in Smith's Bible 
Dictionary, is also very full on the subject. 

The Anglo-Saxons had several different versions 
of the Gospels, the Psalms, some of the Epistles and 
other parts of the Bible, But no trace has been found 
of a version of the entire Bible. These versions were 
made from the Latin Vulgate, which was then the 
only text in general use in Western Europe, and were 
made from the ninth to the twelfth centuries. 

John Wickliffe completed an English version of the 
Vulgate New Testament in 1360, and with the aid of 
Nicholas de Hereford and Richard Purvey completed 
the entire Bible in 1380 or 1382. Wickliife died 1384. 
A large number of the Wickliffe Bibles are extant in 
manuscript. 



MODERN ENGLISH VERSIONS. 

1. Tyndale's 

New Testament, 1526. 

Pentateuch, 1531. 

Book of Jonah. 

Historical Books O. T. not published but 

used by John Rogers in Matthew's Bible* 

1537. 

2. Coverdale's, 1535, printed (/. e., dated) but not 
published until 1537. 



378 MISCELLANEOUS WRITINGS. 

3. Matthew's, 1537. Edited by John Rogers under 
the fictitious name of Thomas Matthew, and composed 
of Tyndale's as far as translated by him, and the 
balance of Coverdale's, all somewhat revised and 
corrected. 

4. Taverner's, 1539. 

5. Cranmer's, 1540. 

6. Genevan, 1557, 1560. 

7. Bishop's, 1568. 

8. Thomson's New Testament, 1576. 
8a. Rheimish New Testament, 1587. 
8b. Douay Bible, 1609. 

9. Authorized Version, 1611. 



JUDGE BRADLEY ON THE OLD ENGLISH BIBLE. 

[The Evangelist, Thiirsday, May 3, 1S83.] 

[Mr. Justice Bradley, of the Supreme Court of the 
United States, is not only a distinguished Judge but 
an eminent scholar as well. Master of several lan- 
guages, his familiarity with them has taught him to 
appreciate the more the good old Saxon, which is the 
basis of our mother tongue. This leads him to prize 
and cherish the old English Bible without any of the 
modem *' revisions " or improvements. The following, 
which a friend has kindly obtained for us, with per- 
mission to use it, was written years ago, before the 
recent Revision was entered upon, and had reference 
to some versions prepared by individuals, which had 
a very limited circulation. The observations, there- 
fore, were not intended to apply to the recent Revision 
prepared by the best Biblical scholars in England and 



ESSAYS AND LETTERS. 379 

America. No one would appreciate more highly the 
results of modem learning which might throw light 
on the word of God. And yet the bearing of what 
is said here would be against any attempt at revisions ; 
and without his positive statement on this point, we 
are inclined to think that if he were asked to form his 
opinion as a Judge between the two versions — that of 
King James and the late Revision— he would say : The 
old is the better. — Ed. Ev.'\ 

The Enghsh Bible taken altogether is a book which 
the English-speaking race should love and reverence. 
It is certainly inspired now if it were not at first. 
Spiritual meanings, hallowed associations, sacred 
memories, lurk on every page, in every passage. That 
which was coarse has become chaste ; that which had 
little meaning has become big with meaning ; that 
which was commonplace has become divine. It is 
per\^aded with the odor of human sanctity, like a 
garment enclosed in a chest of sandal-wood. It is 
invested with a halo produced by reverential regard, 
which ever reacts upon itself, transfiguring that which 
it gazes upon. Generation after generation has 
brought to it each its contributions of inspired mean- 
ings, and it is consecrated by the divinest yearnings of 
humanity. Add to this its pure archaic English, the 
very form and body of which has become sacred to 
the national taste and dear to the national pride, and 
we may account, in some degree, for the talismanic 
effect produced by this book of books, -which no irrev- 
erent hand should touch and no irreverent tongue 
defame. Properly appreciated and wisely used it is 
the most valuable aid and support to piety and virtue. 



380 MISCELLANEOUS WRITINGS. 

I have no patience with the constant attempts to 
change the common version of the Bible. When it 
expresses the sense of the original, why change it ? Is 
it to avoid archaisms ? I like them. They are gener- 
ally pure old English, which it is well to preserve. In 
addition to its intrinsic beauty, it ser^^es as an intro- 
duction to our earlier literature. Besides, we become 
attached to words that have become sanctified by 
long use. They often have associations for us that no 
affected elegance of diction can supply. For example, 
Noyse and others use the auxiliary verb will for shall. 
" Blessed are the pure in heart for they will see God," 
What is gained by this change ? It seems made for 
the sake of change. Campbell and Boothroyd retain 
"shall" but discard "blessed" for "happy," and the 
former discards "pure" for "clean." Thus, "Happy 
the clean in heart for they shall see God." Is the 
sense made more perspicuous by these changes ? Not 
a particle. An old familiar expression is exchanged 
for a new one, which serves no better purpose in any 
point of view. Exactly the same moral thought is 
conveyed to the mind as by the old version ; and that 
version has been the possession of English readers — 
not from the time of James, but from the time of 
Henry VIII, the time of Tyndale and Coverdale. It 
has been our inheritance for three centuries and a half. 
I may be over-nice, but I confess that such verbal 
changes in our sacred and venerable classic are offen- 
sive to my ears. 

The moral lessons of the Bible relate to facts in 
our experience and to phases of our moral nature. 
Our own consciousness recognizes their application. 
Trifling variations of diction can make no alteration 



ESSAYS AND LETTERS. 381 

in their substantial sense. That is determined by the 
real facts of thought, propensity, life. Some human 
characteristic is the object of each uttered formula of 
truth or precept, and fixes its true interpretation. 
Without this objective basis of fact for its application 
the formula would be meaningless. With it the mean- 
ing is definite and unchangeable. This is the great 
conservative element which makes the Bible a practical 
book and restrains all fanciful expositions of its 
language. Therefore it is, that even apologues and 
parables go straight to their mark and are rarely 
misunderstood. Conscience, seated in the inner recesses 
of the human bosom, is quick to perceive and under- 
stand what is meant. Some sore spot of guilt or 
sorrow is instantly touched and responds to the rebuke 
or the promise. The facts of human nature are the 
exponents of religious teaching. It is here, and here 
alone, that the teaching finds its application, just as 
the definitions of science find their true interpretation 
in the things themselves sought to be defined. No 
fanciful variations of phraseology in the definition or 
lesson can alter its substantial significance. When it 
is said, " Blessed are the pure in heart, for they shall 
see God," we know as well what is meant by the 
annunciation as if Greek or Syriac were our vernacular 
tongue and we had heard the original words uttered 
by the Saviour himself. No exposition can make it 
clearer. No choice modem phrases can make it better 
understood. Purity of heart is a spiritual fact, which, 
like a straight line, is always the same under every 
change of description, and the happiness that springs 
from it is as aptly suggested by the word ** blessed " as 
by any other. It is a happiness that has a moral 



382 MISCELLANEOUS WRITINGS. 

reality, and Is not modified or changed by the choice 
of the words used to describe it. The words we have 
are good enough, and being hallowed by long and 
devout use, are better than any new-fangled diction 
that can be devised. 

This instance is but one of ten thousand to which 
the remarks would apply. I concur in changes that 
are necessary to correct manifest errors, and in 
omissions of spurious readings when clearly shown to 
exist. But in no other case should we alter or touch the 
venerable fabric of pure, even though archaic, English 
which we have so long possessed in our standard 
version of the Bible. It is the poorest pedantry to 
attempt a correction of either the language or the 
grammar. Both in their time were as well understood 
by the translators as they are by modem pedagogues. 



EASTER DAY. 



April 9, 1882. This is Easter day, and, by a 
coincidence which does not often occur, it is the chron- 
ological anniversary of Christ's resurrection, which 
took place April 9, A. D. 30, Last Friday, being Good 
Friday, was the like anniversary of his crucifixion. 
The coincidence generally occurs only three times in a 
century, and sometimes not so often. Thus, it 
occurred last century in the years 1719 and 1730 ; in 
the present century in the years 1871, 1882, and will 
again in 1893, and in the next century it will 
occur in the years 1939 and 1950. It is observable 
that w^hen it does occur it is repeated at intervals of 



ESSAYS AND LETTERS. 383 

eleven years — which arises from the fact that eleven 
years (three being leap years) contain 4018 days, 
which make an exact number of -weeks and nearly an 
exact number of lunar months, the number of weeks 
being 574 and the number of lunar months being 136, 
with a surplus of one day, t"wenty hours and ten 
minutes. If, therefore, the full moon happens on 
Saturday, Stli April, Easter day will be on the 9th. 
Eleven years afterward the full moon v^ill occur on 
Thursday, the 6th April, and Easter on the 9th ; 
eleven years after that full moon will occur on Tuesday, 
the 4th April and Easter on the 9th. Thus three of 
these instances may occur successively at intervals of 
eleven years ; but it would not occur a fourth time, 
because there can only be three successive eleven year 
periods, each having three bissextile years ; and if the 
9th of April happens on Sunday three times successively, 
yet it cannot do so the fourth time. 



THE WORLD IS NOT ETERNAL. 

That the material world is not eternal is very 
clearly proved by the progressive changes which it 
undergoes. It seems clear that v^orlds are now in the 
process of formation. Some of the nebulee at least, 
are agglomerating into revolving spheres, and the 
solar system presents every indication of having gone 
through the same process. The sun itself and all the 
planets have passed through a process of condensation, 
and are still subject to that process. The billions of 
years of duration through which the formation and 



384 MISCELLANEOUS WRITINGS. 

organizing process has been going on may appall the 
mind when it attempts to comprehend it ; but were it 
a billion times longer than it has been, it would still 
be limited duration, and could constitute no conceiv- 
able comparison w4th eternity. We are necessarily 
carried back, therefore, to a period when the matter 
of the Solar Universe, and of all other universes, was 
in a gaseous, chaotic and dispersed state, and when 
its revolutions, the effect of gravitation, and the cause 
of distinct formation into spheres, had not begun. 
And yet the matter of these universes, if endowed 
with this gravitating power, must necessarily have 
begun to move and to revolve as soon as it commenced 
to exist. If it existed from eternity, its development 
into spheres must have existed from eternity, and their 
ultimate state of unchangeable solidity would have 
been reached before the commencement of time. But 
we see that this state is not j^et reached, and, therefore, 
it is demonstrable either that the particles of water 
had a beginning, or that the gravitation of matter 
had a beginning. But we cannot separate the one 
from the other. For if the particles themselves are 
eternal, and gravity had a beginning, what gave it 
that beginning ? The particles themselves could not 
evolve it, because having existed eternally without 
this power, they must have acquired it by its being 
superinduced from some cause foreign to themselves ; 
and the creation of this power (gravitation) w^ould 
be as fatal to the idea of the eternity of the universe 
as the creation of the particles of matter would be. 

It follows, therefore, as a necessary result, that 
matter cannot be eternal. And if matter is not eternal, 
then we are landed upon the necessity of some other 
eternal existence which has produced matter and its 



ESSAYS AND LETTERS. 385 

laws. For tlie human mind cannot conceive a begin- 
ninor to duration nor the absolute non-existence of 
some being from eternity. 

The OYervvhelming law of our own nature there- 
fore drives us to the belief, nay, to the absolute 
certainty, of the existence of an eternal and infinite 
Being who has created all things and given them their 
laws. 

The fact of progression in the order of nature is 
abundantly proved by the phenomena exhibited by the 
planet which we inhabit. The successive geologic 
periods show the progress from a molten metallic mass 
on which no life or vegetation could exist, through all 
the stages of change and development, the origin of 
vegetable and animal life, the production and disap- 
pearance of extinct organisms, down to the earth of 
to-day, on which man and new races of animals find 
a congenial home. Man himself has passed through 
changes and progressions. The evidences of his exist- 
ence grow fainter and fainter as w^e travel back into 
the past historv' of the earth ; and after they begin 
to show^ themselves, we find on our return upon the 
track of time that the manifestations of his culture 
and civilization increase age after age until we reach 
the dawn and afterwards the broad daylight of human 
histor}^. 

All that is revealed to us in the universe betokens 
constant change and constant progression. It is this 
law of change and progression on which is based the 
absolute demonstration that the visible universe had 
a beginning, and that the only occupant of eternity 
and immensity was and is and must be its Creator 
and Governor. 

February 22d, 1883. 



386 MISCELLANEOUS WRITINGS. 

[New York Evangelist, Ju-ne 2S, 1S83.] 

YEAR AND DAY OF CHRIST'S CRUCIFIXION. 



BY HON. JOSEPH P. BRADLEY, ASSOCIATE JUSTICE OF THE 
SUPREME COURT OF THE UNITED STATES. 



The exact time of Christ's crucifixion may be 
approximately demonstrated by astronomical calcula- 
tion, after paying due regard to the historical data 
we possess. The cardinal conditions required by these 
data are, first, that the time must be brought within 
the procuratorship of Pontius Pilate ; secondly, it must 
be after the fifteenth year of the reign of Tiberius, and 
after the thirtieth of Christ's age ; thirdly, it must 
occur on the IStli of the Jewish month Nisan (or Abib) 
and on the sixth day of the week, or Friday. 

1. Pilate's procuratorship is fixed as follows : 
From Josephus we learn that Gratus was appointed 
Procurator of Judea by Tiberius, after the death of 
Augustus (which occurred August 19, A. D. 14) and 
continued eleven years, and then returned to Rome ; 
and that Pontius Pilate went out as his successor, and 
continued ten years, and was then recalled, and started 
for Rome, but before he arrived Tiberius was dead. 
As the death of Tiberius happened March 16, A. D. 37, 
and as it probably took Pilate several months to 
make his preparations and complete his journey to 
Rome in the winter, it is apparent that the last year 
of his administration was A. D. 36, and that his 
entire administration extended from A. D, 26 to A. D. 
36 (Josephus' Antiq., b. XVIII, c. II, sec. 2; c. IV, 
sec. 2). 



ESSAYS AND LKTTERS. 387 

2. Luke in his Gospel, Chap. Ill, says that the 
preaching and baptism of John commenced in the 
fifteenth year of Tiberius Caesar, Pontius Pilate being 
Governor of Judea ; and that Jesus was baptized 
beginning to be about thirty years of age ; and that 
immediately afterwards He was tempted, and then 
returned to Nazareth, and commenced publicly to teach 
the people (Luke, Chaps. Ill, IV). As it is generally 
agreed that Christ's public ministry continued some 
three years, the crucifixion must have occurred within 
three or four years of the above date. 

Now, what year was the fifteenth of Tiberius ? and 
what year was it in which Jesus began to be thirty 
years of age ? The years of Tiberius' reign were 
reckoned from two different epochs ; one, his admission 
as joint Emperor with Augustus over all the provinces 
and armies, which took place in the year 12, and the 
other, his accession to the entire government on the 
death of Augustus, which occurred in the year 14. 
The first of these would naturally be used in Judea, 
and the fifteenth from this epoch would be the year 26, 
the year in which Pilate's procuratorship commenced. 
We are confirmed in supposing that this was the j'-ear 
meant when we take into consideration the age of 
Jesus at that time. We know that he was bom in the 
reign of Herod — probably in the last year of his reign, 
because he is spoken of as still "the young Child" 
when he was brought back from Egypt on the death 
of Herod and the accession of Archelaus (Matt, ii, 20). 
Josephus gives us the materials for fixing the date of 
Herod's death. He tells us that he was made King 
by vote of the Roman Senate, with the consent of 
Augustus, in the IS-ith Olympiad, when Caius Domitius 



388 MISCELLANEOUS WRITINGS. 

Calvinus was Consul the second time, and Caius 
Asinius Pollio the first time. Their Consulate was 
in the year of Rome 714 and B. C. 40, and the 184th 
Olympiad ended July 1, B. C. 40. Therefore, Herod 
must have been made King before July 1, B. C. 40, 
and he reigned from that time thirty-seven j-ears ; so 
that he must have died B. C. 3, and the last ^^ear of 
his reign was B. C. 4—3 (Josephus Antiq., b. XIV, c. 
XIV, ss. 4, 5 : b. XVII, c. VIII, s. 1 ; Prideaux's Con- 
nection under B. C. 40 and B. C. 4. Therefore, Christ 
entered upon His thirtieth year in A. D. 26. and com- 
pleted it in A. D. 27. Therefore, whether he was 
baptized in the latter part of 26 or the beginning of 27, 
it would be correctly said that He " began to be about 
thirty ^^ears of age." It seems very clear, therefore, 
that John's preaching commenced in the j^ear 26, and 
that Jesus was baptized and commenced preaching at 
the end of 26 or beginning of 27. His first passover, 
after He commenced Plis public ministry, would be 
either that which took place in the spring of 27 or that 
which took place in the spring of 28. It is certain 
that the crucifixion could not have taken place earlier 
than A. D. 28, and it is not probable that it took 
place later than A. D. 31, unless the period of His 
public ministry lasted longer than has usuallj' been 
supposed. 

And now comes in the astronomical argument 
depending on the question, was there a year from 28 
to 31, inclusive, or near that period, in which the 15th 
of Nisan fell on the sixth day of the week, or Friday ? 
I have assumed that the crucifixion took place on the 
15th of Nisan. It seems to me there can be no doubt 
about it. The Passover was to be killed on the 14th 



ESSAYS AND LETTERS. 389 

of Nisan, "between the two evenings" (Ex. XII, 6) — 
i. e., in the middle of the afternoon, as was always 
understood and practiced by the Jews. (See Ains- 
worth's Commentary on the passage). It was to be 
eaten the same evening. This was also the first day 
of unleavened bread. " This day shall be unto you 
for a memorial, and ye shall keep it a feast to the 
Lord throughout your generations. Seven days shall 
you eat unleavened bread ; even the first day ye shall 
put away leaven out of your houses." (Ex. XII, 
14-15). Matthew tells us; "Now the first day of 
the feast of the Unleavened Bread the disciples came to 
Jesus saying unto Him, Where wilt Thou that we 
prepare for Thee to eat the passover ?" etc. (Matt. 
XXVI, 17). Luke says: "Then came the day of 
unleavened bread, when the Passover must be killed, 
and He sent Peter and John, saying. Go and prepare 
us the Passover, that we may eat," etc. (Luke XXII, 
7-8). Then followed the Last Supper and Gethsemane, 
and the next morning (the 15th of Nisan, of course) 
Jesus was condemned and crucified. I shall assume 
that that was the day, without entering into the 
controversy aboitt the apparent discrepancy between 
John and the other Evalgelists. Of course the 15th 
of Nisan was on the same day of the week as the 1st 
of Nisan. 

Again, I will assume that the day was the sixth 
day of the week, or Friday— the day preceding the 
Sabbath, the preparation day. That is almost the 
universal understanding of Christendom. There are 
some, it is true, who contend for some other da}^ ; just 
as there are some who say that Shakespeare did not 
write the plays that go by his name. But I will not 
stop to argue the point. 



390 MISCELLANEOUS WRITINGS. 

We are to find, then, a year, from 26 to 31 inclusive, 
in which the 15th, and, of course, the 1st, Nisan fell 
on Friday. 

The Jewish jQar was a lunar year, consisting of 
twelve, and sometimes thirteen, lunar months, and 
Nisan was the first month of the ecclesiastical year. 
It vt^ill be necessary to fix the true commencement of 
this month for the years in question. 

As bearing on this subject, the learned Selden, 
brimful of ancient learning of every kind, in his Disser- 
tation on the Jewish year, tells us several important 
things — things that are told by many others, it is true, 
but by no one of higher authority. We learn from 
him, first, that the new moon, by which the com- 
mencement of the Jewish month was fixed, was the 
visible new moon, or actual phasis, and not the astro- 
nomical or mathematical new moon ; secondly, that 
the moon is not visible until after it has passed the 
sun at least nine degrees, or about eighteen hours, 
and under some conditions not so soon ; thirdly, that 
the Jewish year v^^as made to keep approximately 
abreast the natural year by occasionally adding 
an additional month — Ve Adar — to the outgoing year ; 
fourthly, that the first month, Nisan, must come in 
the spring, so as to make the first ripening grain, 
or first fruits (according to the course of vegetation 
in Judea) available for the feast of the Passover ; 
fifthh^, that the month commencing with the new 
moon nearest to the vernal equinox was normally 
the first month, or Nisan ; for it was a rule, derived 
from old tradition, that the full moon of the first month 
must never occur before, but might occur on or after 



ESSAYS AND LETTERS. 391 

the vernal equinox ; and if it would otherwise occur 
before, an intercalary month must be inserted, so as to 
lengthen the outgoing year ; sixthly, that if vegeta- 
tion was ver\^ late, or the spring backward, so as to 
prevent the grain from ripening or to make the roads 
leading to the city impassable, the Sanhedrim had the 
power to insert an intercalary month even when it 
was not regularly required by the time of the equinox. 
These things render the Jewish year somewhat less 
certain than the Greek year, which was governed by 
the fixed cycle of nineteen years invented by Meton. 
Nevertheless, as this cycle brought the beginning of 
the year as it should be, so far as the equinox was 
concerned, it was probably rarely departed from. 
Dean Prideaux is of an opinion that the Jews in the 
time of our Saviour, observed the Metonic cycle, or 
a larger one of eighty-four years, which included it, 
and did not differ from it during the first forty years 
of the first century (Prideaux's, Anno. 162 B. C). 

Now, taking the roman calendar as the standard of 
comparison, and the longitude of Jerusalem (35 deg. 
18 min. 30 sec, E.) as the point for regulating time, 
and midnight as the commencement of the day, it is 
found by calculation, based on the ordinary astro- 
nomical tables, that the vernal equinox in the former 
half of the first century occurred in the afternoon or 
evening of 22d March. Therefore, the full moon of 
Nisan ought not to happen before that day, and the 
preceding full moon ought not to happen before the 
7th of March. Therefore, the new moon, marking 
the 1st of Nisan, must happen between the 7th of 
March and the 7tli of April. 



392 MISCELLANEOUS WRITINGS. 

Next it is found by like calculations, that the 
astronomical new moons nearest to the vernal equinox 
for the years 27 to 35, inclusive, were respectively as 
follows : 

A. D. 27. Wednesday, March 26, at 7 h., 47 m. A. M. 

28. Sunday, March 14, at 2 h., 12 m. P. M. 

29. Saturday, April 2, at 7 h., 32 m. A. M. 

30. Wednesday, March 22, at 7 h., 51 m. A. M. 

31. Sunday, March 11, at h., 26 m. P. M. 

32. Saturday, March 29, at 10 h., 2 m. A. M. 

33. Thursday, March 19, at h., 38 m. A. M. 

34. Monday, March 8, at 5 h., 24 m. P. M. 

35. Sunday, March 27, at 5 h., 53 m. P. M. 

From this table it is apparent that in A. D. 27 the 
new moon which occurred on the 26th March was 
first visible (according to Selden's rule) on Thursday 
evening, March 27th, when the first of Nisan com- 
menced and continued until sunset of Friday evening, 
March 28th. For our purpose the first of Nisan ^wa.s 
Friday, March 28th. And in like manner, attending 
to the respective times of new moon in the other years 
contained in the table, it is equally apparent that the 
1st of Nisan occurred in A. D. 28, Tuesday, March 16th ; 
in A. D. 29, Monday, April 4th, in A. D. 30, Friday, 
March 24th ; in A. D. 31, Tuesday, March 13th ; in 
A. D. 32, Monday, March 31st ; in A. D. 33, either 
Friday, March 20th, or Saturday, Alarch 21st (un- 
certain which) ; in A. D. 34, Wednesday, March 10th 
and in A. D, 35, Tuesday, March 29th. The moons 
here taken for the month Nisan exactly agree with the 
cycle before referred to. 

Thus we see that there were only three years from 
A. D. 27 to A. D. 35 inclusive, in which the first of 



ESSAYS AND LETTERS. 393 

Nisan, and consequently the fifteenth of Nisan, hap- 
pened on Friday ; and these were A. D. 27, 30 and 33, 
the last of which is very doubtful. But we have seen 
that the Crucifixion could not have happened before 
A. D. 28, and probably not later than A. D. 31. 
Therefore, the year 30 is the only one which satisfies 
all the conditions of the problem ; it does satisfy 
them, because it gives opportunity for Jesus to teach 
publicly for about three years, and to attend three 
Passovers during his ministry, or four, according as 
it commenced before or after April, A. D. 27. 

Now, since in A. D. 30, the first of Nisan fell on 
Friday, the 24th of March, the 15th fell on Friday, 
the 7th of April, which, therefore, was the day of the 
Crucifixion. 

This conclusion is adopted by the majority of 
writers of authority, amongst others by Dr. William 
Thompson, in the article "Jesus Christ" in Smith's 
Bible Dictionary — an article prepared with much care 
and learning. Some years ago I arrived at a different 
conclusion, in favor of the year 33 ; but whilst it is 
very doubtful whether the 15th of Nisan fell on Friday 
of that year, it does not agree with Christ's age and 
ministry. I was misled by overlooking the double 
reckoning of the years of Tiberius. 



394 MISCELLANEOUS WRITINGS. 

[New York Evangelist, October 18, 1883.] 

THE DATE OP THE CRUCIFIXION. 

BY HON. JOSEPH P. BRADLEY, ASSOCIATE JUSTICE OF 
THE SUPREME COURT OF THE UNITED STATES. 

Mr. Editor : — Will you please insert the following 
correction of my article, published in your paper on 
the 28th of June last, on the date of Christ's Cruci- 
fixion ? On re-examining my calculations of the time 
of New Moon in March and April, A. D. 27-35, to as- 
certain the first Nisan of these years, I find that I 
committed a slight error in not adjusting astronomi- 
cal time (w^hich begins at 12 noon) to civil time, by 
adding 12 hours in each case, as I should have done. 
This would make the true time of New Moon for the 
several years twelve hours later, as follows : 

A. D. 27. Wednesday, March 26, at 7 h., 47 m. P. M. 

28. Monday, March 15, at 2 h., 12 m. A. M. 

29. Saturday, April 2, at 7 h., 32 m. P. M. 

30. Wednesday, March 22, at 7 h., 51 m. P. M. 

31. Monday, March 12, at h., 26 m. A. M. 

32. Saturday, March 29, at 10 h., 3 m. P. M. 

33. Thursday, March 19, at h., 38 m. P. M. 

34. Tuesday, March 9, at 5 h., 24 m. A. M. 

35. Monday, March 28, at 5 h., 53 m. A. M. 

This correction does not alter the result, except to 
make it certain that the first of Nisan (and conse- 
quently the 15th) could not have happened on Friday, 
in the year 33, which was before stated as uncertain ; 
so that the years 27 and 30 were the only years in 
Pilate's time in which the 15th of Nisan fell on Friday. 
I assume now, as I did then, that the moon must be 
at least eighteen hours old before it can be seen by the 
naked eye. 



ESSAYS AND LETTERS. 395 

[New York EvaageJist, November 1, 1883.] 

DAY OF THE CRUCIFIXION. 

BY HON. JOSEPH P. BRADLEY, ASSOCIATE JUSTICE OF 
THE SUPREME COURT OF THE UNITED STATES : 

Mr. Editor : — I am constantly receiving newspaper 
articles to prove that the Crucifixion took place on 
Thursday, the 14th of Nisan instead of Friday, the 
15th, and a challenge to discuss the subject. But I 
have neither the time nor the inclination for any con- 
troversy on the point. I assume that it occurred on 
Friday the 15th, in deference to the almost unanimous 
traditions of the Church (on w^hich the fast of Good 
Friday is founded), and on what I conceive to be the 
plain meaning of the Gospel account. But it is in- 
different to me which theory is adopted. It is as true 
of the one as the other, that (leaving out the year 27, 
which is inadmissible on historical grounds) there was 
only one year in Pilate's administration in which the 
event could occur, and that was the year 30, for it is 
as true that in that year only the l-ith of Nisan fell 
on Thursday, as that the 15th fell on Friday. The 
astronomical argument is equally demonstrative of 
both hypotheses. I entered into no argument of the 
subject and shall enter into none. Those who are 
convinced that the day was Thursday the 14th, are 
entirely welcome to their opinion as far as I am con- 
cerned. If they could prove that it was Wednesday 
the 13th, it would be equally satisfactory to me. 
What I attempted to show was that according to the 
Jewish Calendar, as regulated by the New Moons and 
the Equinox, there was a year in Pilate's administra- 
tion, consistent with all the historical dates, in which 



396 MISCELLANEOUS WRITINGS. 

the 15th of Nisan fell on Friday, the day commonly 
understood as that on which Christ was crucified, and 
that year was A. D. 30. This I think was proven to 
a demonstration. If this position is established, it 
follows as a corollary, that in the same year the 14th 
of Nisan fell on Thursday. My object in making use 
of astronomical data, was to bring the Jewish Calen- 
dar and the succession of weeks into co-relation with 
the Roman Calendar within the period in which the 
Crucifixion could possibly have taken place. That co- 
relation is independent of any theories as to the parti- 
cular day on which the event occurred. I do not 
think that any v^riter has attempted what seemed to 
me to be a very necessary Avork — indeed the grand 
work of all theories on the subject, namely, the con- 
struction of a comparative calendar for the periods 
embracing the possible epoch of the Crucifixion, and 
an explanation of the principles on which such a 
Calendar is to be constructed. Having this basis and 
ground work to go upon, any number of theories may 
be built upon, but no theory is of the slightest value 
which does not conform to it, as some which I have 
seen do not. 

From the data already given in my previous com- 
munications such a Calendar for the middle of Nisan 
in each of the years 27-35 c-an easily be constructed ; 
but for the convenience of those who are not familiar 
with such things, I give it below in proper form, from 
which it will be seen that those persons who maintain 
that Crucifixion occurred on the 14th of Nisan, may 
still place it on Friday by adopting the year 33 in- 
stead of 30, as the year of the Crucifixion. 

This would, however, postpone that commence 



ESSAYS AND LETTERS. 



397 



ment of Christ's ministry to a date which would not 
agree with His age at that time, as stated by Luke, 
namely, that He "began to be about 30 years of age," 
though it might agree approximately with the " fif- 
teenth year of the reign of Tiberius Caesar" (the other 
date mentioned by Luke), by counting the years of 
that reign from the death of Augustus. 



COMPARATIVE CALENDAR FOR 13-17 NISAN, A. D. 27-35. 

[The Hebrew days commence at sunset, preceding 
the Roman at midnight.] 





A. D. 27. 








A. D. 32. 




Nisan 13 


Wednesday, 


April 9 


Nisan 


13 


Saturday, 


April 12 


14 


Thursday, 


" 30 




14 


Sunday, 


" 13 


15 


Friday, 


" II 




15 


Monday, 


" 14 


16 


Saturday, 


" 12 




16 


Tuesday, 


" 15 


17 


Sunday, 
A. D. 28. 


" 13 




17 


Wednesday, 
A. D. 33. 


•' 16 


Nisan 13 


Monday, 


March 29 


Nisan 


13 


Thursday, 


April 2 


14 


Tuesday, 


" 30 




14 


Friday, 


" 3 


15 


Wednesday, 


" 31 




15 


Saturday, 


" 4 


16 


Thursday, 


April I 




16 


Sunday, 


" 5 


17 


Friday, 
A. D. 29. 


2 




17 


Monday, 
A. D. 34. 


" 6 


Nisan 13 


Saturday, 


April 16 


Nisan 


13 


Tuesday, 


March 23 


14 


Sunday, 


.. ,7 




14 


Wednesday, 


" 24 


15 


Monday, 


" 18 




15 


Thursday, 


•• 25 


16 


Tuesday, 


" 19 




16 


Friday, 


•' 26 


17 


Wednesday, 
A. D. 30. 


" 20 




17 


Saturday, 
A. D. 35. 


•' 27 


Nisan 13 


Wednesday, 


April 5 


Nisan 


13 


Monday, 


April II 


14 


Thursday, 


" 6 




14 


Tuesday, 


" 12 


15 


Friday, 


" 7 




15 


Wednesday, 


" 13 


16 


Saturday, 


" 8 




16 


Thursday, 


" 14 


17 


Sunday, 


" 9 




17 


Friday, 


' 15 



398 MISCELLANEOUS WRITINGS. 

A. D. 31. A. D. 36. 

Nisan 13 Sunday, March 25 Nisan 13 Saturday, March 31 

14 Monday, " 26 14 Sunday. April I 

15 Tuesday, "27 15 Monday, " 2 

16 Wednesday, " 28 16 Tuesday, " 3 

17 Thursday, "29 17 Wednesday, " 4 



INSPIRATION. 



PROPHESYING— "Speaking by the Spirit of God." (I Corinth, c. xiv ; 
c. xii:3.) Teaching of the XII Apostles, c. xi. 

"speaking in the spirit." 

We can well imagine that in the early Christian 
Societies of Asia Minor, Greece, and even Italy, the 
mystic doctrines of Christianity, combined with the 
principles of unselfishness and high morality and 
charity taught as a part of the new system must 
have had a profound effect upon the souls of those 
impassionable people, and that in their religious as- 
semblies extatic conditions of the mind should have 
often supervened, as indeed, is witnessed in our own 
times, amongst certain classes of religionists. Persons 
thus possessed with extatic feeling would naturalh^ 
indulge in prophetic deliverances, more or less, elevated 
and captivating — as the subject of the possession 
was well or only partially instructed, and imbued with 
high and ennobling spiritual convictions. Such per- 
sons would be regarded as "prophesying in the spirit" 
and under proper restraints, their influence w^ould 
greatly redound to the edification of the church and to 
the impression of those not yet connected wath it. 
This class of persons had become well defined in the 
Apostolic age, as may be gathered from the chapters 



ESSAYS AND LETTERS. 399 

referred to. They were still prevalent in the second 
century as we learn from the Teaching of the XII 
Apostles, lately discovered by the Metropolitan 
Bryennios. 

Were not the ancient prophets gifted by a like in- 
spiration ? No one acquainted with the manifesta- 
tions of the human mind in religious, and even in 
poetical directions, can fail to have observed that an 
illuminated and highl}^ susceptible soul is capable of 
great reaches of spiritual intuition and inspired sub- 
limity which far outstrip the ordinary operations of 
the human understanding. Is not this inspiration ? 
Inspiration par excellence ? When the mind is in this 
condition it is less affected by sordid and worldly 
motives and sees, as is seen on a death-bed, all spirit- 
ual things in a clear and steady light. The results of 
a life of reading, study, observation and reflection, 
produce a capacity of conceiving truth in its essence, 
morality in its principles, religion in its highest efful- 
gence — which capacity may be brought into activity 
by an elevation of mind induced by temporary enthu- 
siasm, and extatic feeling. This inspiration is seen in 
all branches of human thought. In the science of law 
the responses of a Papinian are an illustration of it in 
a certain degree. 

April 13, 1890. 



400 MISCELLANEOUS WRITINGS. 

I.ETTER TO AMZI DODD. 

January 23, 1891. 

Dear Amzi : Yours received, with the editorial on 
the Transubstantiation controversy — which is very 
good and just. Our Puritan prejudices against Roman- 
ism are so strong that we are apt to forget that it was 
the only form of Christianity in the West (with a few 
exceptional protests) for twelve hundred years. 

As to supematuralism, there are only three forms 
of belief— three distinct theories on the subject, those of 
1. A personal God. Creator of, but distinct from, 
the World or Universe, exercising a superintending care 
over it, with occasional manifestations (for moral 
purposes) of miraculous interference with the general 
laws of nature. 

2. Such a Divine Creator, who has implanted His 
laws of physical and spiritual being in the system of 
things created, and leaves them to their own opera- 
tion without supernatural interference, 

3. Pantheism, which affirms a Divine Being whose 
only manifestation is in the Laws of Nature, productive 
of all the phenomena of the World or Universe, as its 
Soul or formative principle ; in other words, that the 
World is God. Atheism is but another form of this 
theory, affirming that Nature alone, or an unconscious 
omnipotent force, with fixed eternal laws, is its own 
cause, and that of all phenomena. 

Christianity, as an institutive religion, adheres to 
the first theory ; as a purely spiritual religion, it 
admits also the second. 

Yours sincerely, 

J. P. B. 



ESSAYS AND LETTERS. 401 

INERRANT OR INFALLIBLE BIBLE. 

In a letter to Amzi Dodd, who inquired as to the 
distinction between an inerrant Bible and an infallible 
Bible, taken in some of the debates in the Presby- 
terian General Assembly in discussing the Briggs case, 
I said that the distinction was an arbitrary one, prob- 
ably to designate the two great theories of inspiration, 
the Theophrastic and the spiritual, the former being that 
every word of Scripture was inspired ; the latter, that 
sacred writers were only inspired with spiritual truth, 
and used their own words and illustrations to express 
it, tinged by their environment. The inspiration of 
each word could only refer to the original Hebrew and 
Greek, and not to versions in the other languages, and 
the original texts were liable to errors in transcription 
as well as in translation, so nothing was gained by 
verbal inspiration unless we suppose that the copyists 
as well as translators ^vere also inspired. He who 
inspired the letter (if it w^as so inspired) implanted 
the principle of lingual diversity in the diiferent tribes 
of men and defeated His own object. Jerome, the 
greatest translator that ever lived, whose attention 
must have been frequently given to the subject, said 
that ^^ Inspiratio non constat in verbo sed in sensu." 
But I take little interest in the discussion, my views 
on the subject having been long settled and fixed. 
According to my view, the manner of revelation may 
be expressed as follows : 

The Spirit of God moves upon the ocean of human 
thought, ever evolving light and truth, which con- 
creted in words of immortal power, becomes stereo- 
typed upon the consciousness of the nations, consecrated 



402 MISCELLANEOUS WRITINGS. 

by antiquity into the forms of sacred learning, and 
hallowed by all holy and religious associations. (End 
of letter.) 

This view supposes that the inspiration of the 
Creator never ceases. The soul of man, whenever 
created, whether at conception or birth, or at a distant 
past, proceeds from the Divine Spirit, the fountain of 
all life and intelligence, and derives all its powers and 
capabilities from that source. Its spiritual knowledge, 
developed much more in some than in others, comes 
gradually to be expressed in golden sentences which 
address themselves to the universal consciousness and 
acquire general recognition and belief. 

June, 1891. 



SERMONS. 

A series of interesting sermons might be written 
upon texts of sacred writ, which have a suggestive 
significance or a far-reaching application. Thus : 

" One day is, with the Lord, as a thousand years, 
and a thousand years as one day." (II Pet. 3-8.) 

This thought receives a wonderful illustration in 
considering the immense periods of geological time 
and the various phases which have been assumed by 
the earth, under the successive epochs of palasonto- 
logical history. To the Creator it is only a moment ; 
to our finite comprehension it seems an eternity. 

"He watereth the hills from his chambers; the 
earth is satisfied with the fruit of thy works. He 
causes the grass to grow for the cattle and herb for 
the service of man ; that he may bring forth food out 
of the earth." (Ps. CIV, 13-14.) 



ESSAYS AND LETTERS. 403 

Who can look at the hills and plains of the earth, 
covered with grass and trees, all clothed with beauty 
and richness, springing with life and freshness and sup- 
porting flocks and herds and tribes of men ; who can 
look at all this glorious envelopment without a feeling 
of wonder and adoration ? If our sense of time 
could be quickened so as to make the duration of a 
year seem but an hour, or a minute, the earth and its 
vesture would appear a living thing ; coming and 
departing vegetation would appear to move rapidly 
before our e3^es, the assuming and putting oif 
annual verdure, the grass of the fields and the leaves 
of the trees, would seem like the peaceful breathing of 
a person in sleep ; the earth would appear a gigantic 
living being, invested vnth life and all vital motions 
and forces. 

Litchfield, July 5, 1891. 



RELIGIOUS FORMS. 

Whilst believing in the infinite mercy and goodness 
of God, and being confidently willing to trust to that 
alone, I entertain profound respect and consideration for 
those who trust in dogmas and theories of atonement 
and in church organizations and religious observances, 
and I would not for the world discourage them from 
performing their pious work. They do great good to 
those who cannot be affected by religious principles in 
any other v^ay. Churches and preaching and prayers, 
and worship in every form, have wonderfully effective 
uses ; and those who minister therein should be treated 
with all courtesy and respect for their sincere efforts 



404 MISCELLANEOUS WRITINGS. 

to benefit others and for the great good they do. " Do 
not wonder at these amulets," said Pericles on his sick- 
bed to Alcibiades, " above all do not order them to be 
removed. The kind old nurses who has been carefully 
watching over me day and night are persuaded that 
they w^ill save my life. Superstition is rarely so kind- 
hearted ; whenever she is unable, as we are, to rever- 
ence, let us at least respect her." I would not only 
respect, I would reverence the kind intentions of a 
sincere minister, and of all others Mrho have a firm 
conviction in a religious creed. Whatever may be our 
own views, and however well settled and grounded, 
we cannot, without danger to society and its dearest 
interests, turn our backs upon the religious institutions 
which play so important a part in humanizing and 
refining mankind. No other religious belief, or disbelief, 
could have done so much for the elevation and refine- 
ment of the human race as Christianity has done 
during the last eighteen hundred years. 

If we do not believe in miracles, we may well believe 
in the vast importance and benefit of those hoary 
traditions of Divine influence which have become as 
effective for good with the great mass of mankind as 
if thev were based on the most certain deductions of 
reason and experience. When they become merged 
into idle superstition and the plea for cruel and pro- 
scriptive intolerance, they may be justly opposed ; but 
w^hen only employed for the promotion of religious and 
pious affections, they are of incalculable value to 
society. It will only be when men become perfect that 
positive institutions of religion can be safely dispensed 
with. 

But there is no reason why a man of superior 
intelligence should allow his own spiritual equanimity 



ESSAYS AND LETTERS. 405 

and calm trust in the Divine goodness to be disturbed. 
His accounts between him and his Maker are, of all 
things, his own affair, not to be meddled with by 
others. If meddled with from good or kindly motives, 
he can afford to indulge the intrusion with kind and 
grateful acquiescence. At the same time, when called 
to approach the presence of his infinite and beneficent 
Creator, he can do so with a feeling of sure dependence 
on His paternal love. He may have been erratic and 
offending, but he is a child, and may at last rely on 
his Heavenly Father's paternal love. 
June, 1889. 



DANGER OF ABROGATING RELIGIOUS FORMS. 

Suppose the guesses of Science are true, and that 
creation has proceeded by a process of development for 
countless ages, producing species and genera one after 
another, and proceeding gradual!}^ from rude to high and 
delicate organizations — according to laws implanted 
in the system w^hich we call nature and the w^orld — 
without any direct intervention of a separate intelli- 
gence and w^ithout any direct communication from 
such intelligence of the principles of knowledge or duty ; 
these being left, like all else, to be developed by natural 
causes, by reason and experience. Suppose all this to 
be true. Is the world ripe for such knowledge ? 
Evidently not. Ages must yet transpire. Too many 
are interested in the support of existing systems, and 
the masses are too little developed in moral perception 
and principle to make it safe to abandon the artificial 
methods and sanctions by which order is maintained. 
Resistance to the prejudices of mankind only injures 



406 MISCELLANEOUS WRITINGS. 

him who offers it. If a community imposed the 
penalty of death for wearing scarlet, none but a fool 
would put it on. Until the world is ready for the truth, 
it is not safe to communicate it, except to the select few 
who can be trusted to embrace and guard it ; that 
select few who are governed by inherent and unbend- 
ing rectitude. The wise man will continue to respect 
and obser^^e the laws, usages and modes which prevail, 
and which society regards as essential to the conserva- 
tion of order and morality. Mankind in general can 
only be gradually awakened to truth. The light of 
science w^ill, in the end, quench the farthing candles of 
error and superstition. But the time cannot be 
hastened by violence. So long as the moral and social 
habiliments which men choose to wear are productive 
of good and not of evil, it is not necessary for one to 
seek martyrdom by a bold declaration of the whole 
truth. Let such cherish it in his own bosom without 
thrusting it offensively upon others. Like the little 
leaven hidden by the housewife in the meal, it will 
gradually, but surely, permeate the whole lump. At 
present, however, the existing institutions are pro- 
ductive of good, and therefore necessary. To over- 
throw them would be to overthrow morality. In 
cutting loose from established forms, one is apt to cut 
loose from the standards of duty themselves, and is in 
danger of running into wild and fathomless specula- 
tion. These standards are the result of ages of human 
experience, and ought to be regarded as sacred as if 
directly communicated by a personal Deity. The fiction 
that they were so communicated may give them addi- 
tional power over feeble intellects, and should not be 
rudely dispelled from their imaginations. A wise man, 



THE SABBATH AND SUNDAY. 407 

therefore, will not only tolerate, but continue to 
observe, the forms of religious and moral practice — 
not because founded on supernatural sanctions, as is 
pretended, but because they have been found of great 
use in preserving and inculcating the principles of order 
and duty, on which all human happiness is based. 



THE SABBATH AND SUNDAY. 

The injunction to keep holy the Sabbath, though 
included in the ten commandments, is not an obligation 
of natural law, but w^as a special regulation imposed 
upon the Israelites as a nation ; and, therefore, it is 
not of perpetual or universal obligation. It "was not 
adopted as an institution of Christianity, but was 
expressly repudiated as such. The early Christians, 
desirous of having a set day for religious assemblies, 
as "well as for a festival, selected the first day of the 
week ; first, in order to show their repudiation of the 
Sabbath ; secondly, as a memorial of Christ's resur- 
rection. But, aside from meeting together for wor- 
ship, and enjoying the day as a festival, they attached 
no religious sanctity to it inconsistent -with the pursuit 
of their ordinary avocations and amusements. It 
■was not until later times, when the ecclesiastical spirit 
became more dominant, that it -was enforced as a 
Sabbath. 

In support of these propositions we might rely on 
the authority of the learned Selden, who treats of the 
Sabbath in Book III, cc. 19-23 of his work, De Jure 
Naturse et gentium apud Hebrasos ; also of Milton in 
his posthumous publication, De Doctrina Christiana. 



408 MISCELLANEOUS WRITINGS. 

But it is more satisfactor}^ to refer to the original 
sources of authority. Let us look first at the original 
institution of the Sabbath amongst the Israelites. We 
hear nothing of its observance as a religious da}^ until 
the fall of manna in the desert of Sinai, related in 
Exodus, c. XVI. The people were told to gather 
enough on the sixth day of the ■week to suffice for the 
seventh, on which day they were directed to rest. 
(vs. 22-30.) The Egyptians, it is true, had used the 
hebdomas, or seven-day division of time for ages prior 
to this period, as shown by hieroglyphical inscriptions, 
and as testified by Dio Cassius ; it being a quarter of 
the period taken by the Moon in passing through the 
signs or Chambers of the Zodiac ; and they called this 
quarter, or hebdomas Uc, nearly the same as the old 
Saxon Wuc (w^eek) ; and they had named the days 
of the week from the planets. Sun, Moon, Mars, 
Mercurj^, Jupiter, Venus and Saturn, in the order here 
given, being the same order afterwards adopted by 
the Hindoos, and still later by the Romans, and which 
still prevails with us. The Israelites rejected these 
names as savoring of idolatrj^, and designated the 
days by number onh^, except the seventh, which they 
called the Sabbath. But there is no evidence that 
either of these days of the hebdomas had been set 
apart for religious purposes, or as a Sabbath, until it 
was so done amongst the Israelites ; although Hesiod, 
in enumerating the da^'S of the lunar month, calls the 
seventh day "the sacred seventh," w^hich may be an 
allusion to some archaic traditions on the subject. 

A short time after the fall of manna had com- 
menced, the ten commandments were given to the 
Israelites at Mount Sinai ; but they were given to them 



THE SABBATH AND SUNDAY. 409 

as a national written law, and were of no further 
obligation upon other nations than as they embodied 
or expressed the natural law. With the exception of 
the injunction to keep holy the Sabbath, they are of 
this character, and as such were summarized by Christ 
(quoting Deut. VI, 5 and Levit. XIX, 19) in the two 
great fundamental precepts — to love God supremely, 
and our neighbor as ourselves. Matt. XXII, 37 ; Mark 
X, 19-20 ; Luke X, 27. That the law of the Sabbath 
was special and national is shown in Deut., c. 
V, where the ten commandments are recapitulated ; 
and where the reason given (v. 15) for the institution 
of the Sabbath is peculiarly national : " Remember 
that thou wast a servant in the land of Egypt, and 
the Lord thy God brought thee out hence through a 
mighty hand and a stretched out arm ; therefore, the 
Lord thy God commanded thee to keep the Sabbath 
day." In Exodus, c. XXXI, v. 13, when the keeping 
of the Sabbath is enjoined, the reason given is, ** for it 
is a sign between me and you throughout your gener- 
ations," and in verse 16 it is added, *' wherefore the 
children of Israel shall keep the Sabbath, etc., for a 
perpetual covenant.^^ 

When Christ commenced preaching the new dispen- 
sation for all mankind, he evidently repudiated the 
Jewish idea of the Sabbath. When he enumerated the 
commandments which the young ruler was to keep in 
order to have eternal life, the command to keep the 
Sabbath was not mentioned. And that this is no slip 
of the pen, or omission of the historian, is evinced by 
the concurrent relation of three Evangelists (Matt. 
XIX, 18; Mark X, 19; Luke XVIII, 20). Christ 
also availed himself of repeated opportunities of 



410 MISCELLANEOUS WRITINGS. 

showing His opinion of the Sabbath. Notwithstand- 
ing the disapprobation of the Jews, He, on that day^ 
healed the sick, cured the bHnd, and allowed His 
disciples to gather food, telling His hearers that it was 
lawful to do good (that is, any good act) on the 
Sabbath day ; that the Sabbath was made for man 
and not man for the Sabbath ; and that He, the Son 
of Man, the Representative of Humanity, was Lord 
even of the Sabbath day, thereby clearly indicating 
that the institution, so far as mankind in general are 
concerned, was subject to Human regulation and sub- 
servient to human happiness. (See Matt. XII, 1-13; 
Mark II, 23, HI, 5 ; Luke VI, 1-10, XIII, 11-17, XIV, 
1-6 ; John VII, 23, IX, 13-16.) 

About eighteen or twenty j^ears after Christ's 
death, when large numbers of Gentiles had been 
added to the church, the question came squarely up, 
whether the laws and observances of Moses were to 
be binding on Christians. (Acts c. XV.) A solemn 
Assembly, or Synod, was held on the subject in 
Jerusalem, and after speeches from Peter, Barnabas^ 
Paul and James, it v^as finally settled that none of 
such laws or observances were to be binding except 
in four specified matters, of which the Sabbath is 
not one. The Christians in Judea, it is true, being 
mostly Jews and always accustomed to conform to 
those laws, still observed them, and were even zealous 
about them. (Acts XXI, 17-18.) And many Jewish 
converts in other countries endeavored to inculcate 
the obligation of these laws, which would have had 
the effect of reimposing the yoke of servitude, in 
ordinances, from which Christians had been authori- 
tatively freed. This became the occasion of frequent 



THE SABBATH AND SUNDAY. 411 

and vehement animadversions on the part of Paul, 
and constituted the burden of several of his epistles. 
Thus, in his Epistle to the Colossians, writing on this 
subject, he conjures them not to let any man beguile 
them with enticing words (II, 4) ; that, as they had 
received Christ (that is, the doctrine of Christ), so 
they should walk therein (v, 6) ; reminding them that 
Christ had blotted out the handwriting of ordinances 
(v. 14) ; and he enjoins them to let no man judge 
them (that is, call them to account) on the subject of 
meats, drink or holydays, or new-moons or Sabbaths, 
which he declared were mere shadows of things to 
come, Christ being the body or substance (vs. 16-17). 
Again, in Romans, c. XIV, 1, he inculcates the utterly 
unessential character of these ordinances — " Him that 
is weak in the faith, receive ye, but not to doubtful 
disputation. For one believeth that he may eat all 
things ; another, who is weak, eateth herbs. Let not 
him that eateth despise him that eateth not, and let 
not him which eateth not judge him that eateth," 
etc. One man esteemeth one day above another ; 
another esteemeth every day aUke. Let every man 
be fully persuaded in his own mind." These passages 
show that the observances of Sabbaths and holy days 
v^as reckoned in the same category as the prohibition 
to eat certain meats. The principal burden of the 
Epistle to the Galatians is this very subject of Mosaic 
ordinances and the abolition thereof by the death of 
Christ. The Judaizing teachers had produced a sen- 
sible impression upon the Galatean converts. It is 
in reference to this that Paul bursts out in that 
notable exclamation, " O foolish Galatians, who has 
bewitched you ? " etc. The great lesson of the Epistle 



412 MISCELLANEOUS WRITINGS. 

is, that Christ had freed his followers from the law 
of Moses and had established a spiritual and practical 
religion whose essence consisted in faith, love and 
good works. (See the whole of the fifth chapter). 

It seems clear, therefore, that the great leaders 
of the Christian movement regarded the Sabbath as 
no longer a binding institution. 

The question remains as to the rule and practice of 
the early church -with regard to the first day of the 
■week, or Sunday. 

It is certain that from the earliest times (after 
Christ's death) the Christians were in the habit of 
meeting together on this day for worship, and also of 
keeping it as a festival in remembrance of Christ's 
resurrection. But it is equally certain that the day 
was not kept as a Sabbath. To have kept it as such 
would have been repugnant to the Christian idea of 
freedom from Alosaic burdens and ordinances. Subject 
to the duty, or privilege, of meeting for worship, there 
is no evidence that the early Christians did not feel 
authorized to pursue their ordinary avocations and 
amusements on that day. Its dedication to public 
worship and festal enjoyment was not by command- 
ment, but by choice and general consent. In later 
times its more stringent observance ^vas inculcated by 
ecclesiastical authority or by civil laws enacted under 
ecclesiastical influence. 

A reference to some Scripture passages will show- 
how its use probably originated. Christ, as before 
stated, rose on the first day of the week ; and that 
evening He appeared to the Apostles, who were 
assembled together in a closed apartment for fear of 
the Jews. (John XX, 19.) A week later they were 



THE SABBATH AND SUNDAY. 413 

again assembled, and Christ again appeared to them, 
on the occasion when He upbraided Thomas for his 
want of faith. (John XX, 26.) It is probable 
that the Apostles and more prominent disciples 
continued to meet on this day, since we find that a few 
weeks later they were so met on Pentecost (which 
occurred on the first day of the week) (Levit. XXIII, 
16), on which occasion the Spirit was miraculously 
communicated to them. This appears to have been 
the remote origin of the Christian use of the day. 
The Apostles often frequented the synogogues on the 
Sabbath, it is true, because it gave them an oppor- 
tunity of addressing the Jews ; but the general 
practice of the Christians themselves undoubtedly was 
to meet for worship on the first day. Thus we are 
told that Paul, on one of his missionary tours, came 
to Troas and tarried there seven days, and " upon the 
:first day of the week, when the disciples were together 
to break bread, Paul preached unto them." (Acts 
XX, 7). About the same time, writing to the 
Corinthian Christians, and amongst other things 
urging them to contribute to the donations being 
made for the suffering Christians in Judea, he 
said : " On the first day of the week let every one of 
you lay by him in store, that there be no collections 
when I come." (I Corinth. XVI, 2.) In fine, before 
the completion of the New Testament Canon, the 
day had become so marked by custom and usage 
that it received the appellation of " Our Lord's Day " 
{Dies Dominicus.) The author of the book of Revela- 
tions uses the expression " I was in the Spirit on the 
Lord's day." (Rev. L, 10.) 

The general testimony of antiquity and tradition 
of the Fathers of the Church are to the effect that the 



414? MISCELLANEOUS WRITINGS. 

day was habitual! j used as above stated. I think 
Tacitus says that the Christians were in the habit of 
meeting together and singing divine hymns on that 
day. 

The first civil regulation on the subject of the 
observance of Sunday was made by Constantine in 
the year A. D. 321. As this Ordinance, or Constitu- 
tion, as it is called, probably shows the general 
Christian sentiment at that period with regard to the 
proper mode of observing the day, a translation of it 
is appended, together with a second ordinance by the 
same Emperor, and an abstract of subsequent Roman 
laws. It will be perceived that after Christianity 
became the religion of the state, and the power of the 
Ecclesiastics consequently increased, the regx^Jations 
grew more and more strict. 

IMPERIAL CONSTITUTIONS. 

1. By Constantine, March, A. D. 321. "All judges, 
inhabitants of cities and artisans shall rest on the 
sacred day called Sunday {die Solis). But those in 
the country may freely and lawfully attend to the 
culture of the land, since it often happens that com 
cannot be committed to the furrows, nor vines to the 
ditches, so well on any other day ; and we should not 
permit the blessings of heaven to fail by neglecting 
the favorable moment." 

(Code Justinian, B. Ill, tit. 12). 

2. By the same, June, 321. " Though we have 
deemed it improper that Sunday, a holiday of peculiar 
sanctity, should be occupied in contentious litigation 
between parties ; yet it is our pleasure that on that 
day those things may be concluded which are, in 



THE SABBATH AND SUNDAY. 415 

tlaemselves, highly desirable ; and, therefore, on this 
festival all persons shall have liberty of emancipation 
and manumission ; and no legal proceedings to that 
end shall be prohibited. (Codex Theodos. II, 8). 

WESTERN EMPIRE. 

3. Valentinian the Elder, A. D. 368, decreed that 
no taxes should be collected from Christians on Sunday. 
(Codex Theodos. YIII, 8). 

Valentinian the Younger, A. D. 386, decreed that 
all legal proceedings whatever and all business gener- 
ally should cease on Sunday, which (it is added) " Our 
ancestors properly called the Lord's day." (Code 
Theod. VIII, 8-3). 

EASTERN EMPIRE. 

4. Theodosius the Great, A. D. 379, forbade the 
exhibition of shows on Sunday. (Codex Theodos. XV, 
5-2). And Theodosius the Younger, A. D. 425, 
■extended this prohibition to all the cities of the Empire. 
(Code Theod. XV, 5.) 

As a matter of general history, it may be asserted 
that the practice of Christendom, as to the observance 
of Sunday, corresponded for the most part with the 
character of the day which we have endeavored to 
describe. It was always the practice to celebrate 
public worship on Sunday and to devote the rest of 
the day to festal purposes, amusements and social 
gatherings. It was only at a late period, after the 
rise of Puritanism in England and Presbyterianism in 
Scotland, that in those countries the day was converted 
into a strict Sabbath. This resulted from the Puritan 
theory that the Old Testament church, by way of 



416 MISCELLANEOUS WRITINGS. 

symbol or type, contained within it all the essential 
elements of the New Testament church, and that all 
precepts and observances not expressly abrogated are 
still binding. Hence they recognized the perpetual 
obligation of the fourth commandment, respecting the 
Sabbath, as well as of the other commandments, 
admitting only the change of the day from the seventh 
day of the week to the first. The Continental theolo- 
gians called this theory the English Fiction {Figmentum 
Anglicanum). It was carried to a greater extent, if 
possible, in New England than it was in the mother 
country. Cotton Mather refers to a correspondence 
on the subject between Rev. John Howe, the great 
Puritan divine and the Apostle ElHott, in which the 
latter complained of the laxity w^hich prevailed in 
England in the observance of the Sabbath. He con- 
tended that it was not enough to devote the day to 
religion in the same manner as the other days are 
devoted to labor and worldly pursuits ; but the 
Christian's whole being should be consecrated to 
holiness continually on that day, without even per- 
mitting the thoughts to wander upon secular subjects. 
One of the charges against Archbishop Laud was 
advising the King to publish his declaration for the 
use of sports on the Lord's day. His answer was 
(inter-alia) that the ** declaration only allowed lawRil 
recreation, which is no more than is practiced at 
Geneva." (Neal's Hist. Puritans, Vol. II, 146). The 
Commons replied, that though Calvin differs from our 
Protestant writers about the morality of the Sabbath, 
yet he expressly condemns dancing and pastimes. ( lb. ) 
We are fond of condemning Catholics and others 
for subverting the express commands of Christ and 



THE SABBATPI AND SUNDAY. 4-17 

his Apostles bj their traditions and ceremonies. Per- 
haps a little more candor would reveal a very large 
mote, if not an actual beam, in our own eyes. 

PART II. 

What has thus far been said on the subject of the 
Sabbath and on the observance of Sunday, presents 
but one side of the question ; it shows us w^hat is not 
the true Christian idea on the subject, but does not 
show what the positive duty of the Christian is. In 
order that the conclusions arrived at may not be 
misunderstood, it is proper to look for a moment at 
the other side of the question ; for it is of great 
importance, both to ourselves and in reference to our 
influence upon others, that we should clearly settle in 
our own minds what are the proper duties of that day 
which even in Apostolic times, as we have seen, was 
called " the Lord's da3^" Paul said, " Let everyone be 
fully persuaded in his own mind " on this very point, 
intimating that we should have fixed convictions in 
relation to it. 

What conclusion, then, ought we to form with 
regard to the mode in which Christians ought to keep 
the day ? Are they, in view of what has been said, to 
disregard it altogether and make no distinction of days, 
as some did not in Paul's time ? This by no means 
follows. It is true, as we have shown, that its 
observance is not imposed upon us as a Sabbath, by 
which is to be understood a day so sacred that no 
secular work or act whatever can be done, and 
no diversions can be indulged in on that da}^ 
without sin. But without making it such a burden 
as this, so utterly inconsistent with the idea of 



418 MISCELLANEOUS WRITESIGS. 

Christian liberty, we are nevertheless bound to 
regard with the greatest deference the practice of the 
early church and of common Christendom. We cannot 
cut ourselves loose from all ecclesiastical usages and 
order without repudiating the organized form of the 
Christian society. Whilst it is not only lawful, but a 
duty, to scrutinize the foundation of the observance, 
and to show, if such be the fact, that it is not by 
Divine command, but the result of the consentaneous 
act of the early Christians, and whilst we may properly 
reject the Judaical notions which have been attached 
to it by Puritanical zealots, utterly at war as they are 
with Christ's and Apostolic ideas, there still remain 
strong reasons why, as a Christian people, we should 
set the day apart for public worship, for rest from the 
toils and cares of ordinary life, and for purposes of 
social and festal enjoyment. Thus observed it is 
indeed a blessing, as well as the means of promoting 
civilization and Christianity. It is a most gladsome 
sight to the philanthropist, as well as the Christian, to 
see all people of every degree, the poor as well as the 
rich, cease from sordid and worldly occupations on 
one day of the week, and come forth, old and young, 
in clean and holiday attire, and with glad faces go 
together to the house of prayer and perform their devo- 
tions ; and it is but a surly sort of piety that grudges 
to see them spend the balance of the day in harmless 
festivity and neighborly sociability. The Lord's day 
thus observed is a bright spot in human life. It 
elevates the moral character and susceptibilities ; it 
humanizes, it civilizes, it refines. It teaches to think, 
it promotes social intercourse, it takes away the 
coarseness, the roughness, the rusticity of those who 
would otherwise be secluded from softeninsf influences. 



THE SABBATH AND SUNDAY. 419 

As a means of social elevation and progress, as well 
as of religious improvement, its influence cannot be 
adequately estimated. I yield the precedence to no 
champion of sabbatical ideas in imputing to the due 
observance of Sunday as a holyday, such as described, 
the most important part in the cultivation and support 
of virtue, intelligence and refinement and in the 
discouragement and suppression of vice. 

To the sanctions and usages of the church must be 
added, in estimating the question of duty, the regula- 
tions on the subject which are made by the law of the 
land. These, at the present time, are generally in 
accord with the true character of the day. Whilst 
imposing no positive act to be done, the law simply 
requires the cessation of ordinary employments and of 
those diversions and practices which would disturb 
the peace and quiet of the day (so essential to the 
value and beauty of the institution), or which lead 
directly to the practice of vice. If the laws attempt 
more than this, they generally but express the unwise 
zeal of those who made them, and by being unnec- 
essarily severe, defeat their own purpose. 

That civil society has a right to enact w^holesome 
laws on the subject is manifest both from the sayings 
of Christ and from the incalculable benefits which 
society derives from the institution. The sayings of 
Christ referred to are those which have been quoted in 
the first part of this essay : " It is lawful to do good 
on the Sabbath day;" "the Sabbath was made for 
man, and not man for the Sabbath ;" " The Son of 
Man is Lord even of the Sabbath day." Applying the 
spirit of these remarks to the institution of Sunday, and 
they express all that I contend for on this subject. 



420 MISCELLANEOUS WRITINGS. 

The conclusion, therefore, is, that as an institution 
of the church and of civil society, we cannot afford to 
ignore as a duty the observance of Sunday, in the 
manner above described, not making it like the Jewish 
Sabbath, a burden upon our consciences and our liberty. 
Having performed the religious duties of the day, 
according to ancient Christian usage, we are free to 
enjoy social converse and harmless festivity, or the 
beauties of nature or art ; and if imminent cause 
requires, we may rightfully do those things which are 
necessary to prevent the destruction or injury of life 
or property. To enjoin the contrary would be to put 
a strain upon the conscience which would result in 
greater harm than good. 

The question has often been raised whether the 
observance of Sunday as a day of rest is a precept of 
the common law. In Hawkes' Grounds of the Laws 
of England (1657) is laid down this maxim: Dies 
Dominicus non est dies juridicus. The Sabbath 
day is no day for the law ; as upon a Fine levied 
by Proclamations according to the statute of 4 H. 
7, c. 24. If any of the proclamations be made on 
the Sabbath day, all the proclamations be erroneous, 
for the Justices must not sit upon that day, but it is 
a day exempted from such businesses by the common 
law, for the solemnity of it, to the extent that the 
people may apply themselves that day to the service 
of God. (5 Cru. Dig. 99.) 

" No plea shall be holden quindenae Pasche, because 
it is always the Sabbath, but shall be Crastino quin- 
denee Pasche. Fit. Nat., fo. 17 f. 

" Teste of Sci. Fa. upon Sunday is error. Dj'-er 
168. 



THE SABBATH AND SUNDAY. 421 

"No sales upon a Sunday shall be said to be a 
sale in market overt to alter the property. 12 E. 4.8. 

" Ministerial acts are allowed, as to arrest or serve 
process, otherwise peradventure they should not be 
executed, and God forbid that things of necessity 
should not be done on that day, for bonum est bene 
facere die Sabbati." 

'^ Dies Dominiciis non est juridicus.^^ Co. Lit. 135. 
2 Saund 291. Wingate's Max. 5. Noys' Max. 2 (5th 
Ed.) Exercising trade of butchers no offence at com. 
mon law. I Stra. 702. Noy. 2 (Ed. 5). Finch's 
Law, 3 b. No proceedings in a suit can be entered as 
done on a Sunday v^ithout making all void. 2 Inst. 
264. 3 Buy. 159. 

(See further as to English Law on the subject, 11 
Rep. 65. Finch L. 7 ; 1 Atk. 58 ; IT. R. 265 ; Com. 
Dig. Temps (B. 3) 20 Vin. Abr. 61 ; 4 Bl. com. 65 ; 1 
Hawk P. C. 11 ; 3 Burns Just. 106 ; Broom's Max. 
21, 3 D. & L. 328, 330 Docd. WilHamson vs. Roe, 3 
D. & L. 328). 

The question whether Christianity is part of the 
common law is discussed by Mr. Jefferson in an 
appendix to his reports, and rediscussed in a letter to 
John Adams dated January 24, 1814 (Works, Vol. 
VI, 302-305), and in a letter to Ed. Everett, Oct. 
15, 1824 (Works, Vol. VII, 380-383) ; also, in Blakely's 
** State Papers on Sunday Legislation," 127-141. 

Mr. Jefferson says that all the dicta that Chris- 
tianity is part of the common law take their origin 
from an observation of Judge Prisot in a case in C. B. 
34 H, 6, fo. 38, in which it was a question how far 
the case (being up on a right of presentation) was 
to be governed by the Eccl. Law, and he said : " To 



422 MISCELLANEOUS WRITINGS. 

such la-ws as they of the Holy Church have in ancient 
writing (ancient scripture) we ought to give credence ; 
for so is the common law on which all manner of laws 
are founded." The Judge here did not refer to the 
Bible or Holy Scripture, but to the ancient writ- 
ings by which the Ecclesiastical Law was known, yet 
by a strange misinterpretation it was supposed that 
the Holy Scriptures, and hence the whole Christian 
religion was meant ; and subsequent writers and 
judges refer to Prisot as laying down this doctrine, 
which is totally without foundation. 



ON THE EXISTENCE OF A GOD. 

Is, or can there be, such a thing as a principle 
without a subject ? And as we know from the testi- 
mony of our own consciousness that there are such 
principles as justice, truth, equality, etc., without and 
independent of ourselves, is not this the reason why 
the mind clings to the idea of a God — a substance (to 
speak figuratively) to support and give existence to 
these spiritual qualities ? We cannot conceive of their 
existing independently of any subject. That great 
Being from w^hom we spontaneously infer that they 
flow, w^e call God. 

[As touching the above reasoning, we give the fol- 
lowing unknov^Ti quotation — with Judge B.'s com- 
ment] : 

** Since there must have been something from eter- 
nity because there is something now, the Eternal Being 
must be intelligent because there is intelligence now 
(for no man will venture to assert that nonentity can 



ESOTERIC THOUGHTS ON RELIGION. 423 

produce entity, or nonintelligence, intelligence), and 
such a Being must exist necessarilj^, for it is no more 
possible to conceive of an infinite than a finite progres- 
sion of effects without a cause." 

'* Did you ever see anything more perfect that this ?" 

J. P. B. 



ESOTERIC THOUGHTS ON RELIGION AND 
RELIGIONISM. 

On this subject my viev^s have undergone consider- 
able modification within a few years past. The dis- 
coveries of modem science have rendered some of our 
orthodox notions untenable. But I feel that it is 
necessary to guard against that laxity of principle 
which is too apt to follow an abandonment of former 
convictions. When the mind becomes tmsettled with 
regard to its traditionary forms of faith and observ- 
ance, the danger is that it may cast loose from the 
principles of morality itself. This gives rise to the 
arcrumentutn ab inconvenienti which constitutes the 
strongest bulwark of dogmatism against the assaults 
of truth. I, therefore, once for all, protest that what- 
ever modifications my views of the theoretical and 
speculative part of religion may have undergone, I do 
not abate one jot or tittle from the claims of religion 
as a principle of action, the sanctit}^ of the moral law, 
or the necessity of aids and appliances for cultivating 
the moral nature and promoting moral purity. The 
result of the ethical consciousness in man, no matter 
by what sanctions encouraged and enforced, has been 
the construction of a profound system of moral and 



424 MISCELLANEOUS WRITINGS. 

social laws, which is to be held sacred and inviolable. 
This may justly be deemed the expression of Divine 
Law, because evolved from the Spiritual exercise of a 
being proceeding- from the Divine hand and informed 
by Divine gifts, although engaged in an arduous 
struggle with sordid and deteriorating inEuences. 
Whilst this law is enforced with terrible directness and 
tincompromising earnestness in the Holy Scriptures, a 
large portion of its code is also found in the recorded 
thoughts of the nations called heathen. 

But, first of all, we should aim to get clear notions 
of what the essence of religion is. 

We have been taught that the chief end of religion 
is to avoid eternal misery and obtain eternal happi- 
ness. But, in my judgment, its true object is to make 
men better, or rather, to make them good— a word 
which includes every virtue. If this is attained, the 
future may be left to take care of itself, and should, at 
least, excite no fears. Religion inculcates piety towards 
God and man, and is summed up by Jesus Christ in love 
to God and man. It has been well defined as the recog- 
nition of God as an object of worship, love and obedi- 
ence, and, secondly, as the state of mind resulting 
from and in harmony with such recognition. Some 
have called it the effort of man to perfect himself But 
the word " religion " is used in many senses: First, 
for the bond of relationship between God and man, 
and the duty of man arising therefrom. This is 
religion considered objectively, but still apart from 
outvv'-ard observances. Secondly, it is used to express 
the condition of the human heart and life when in 
harmony with this relationship ; or religion considered 
subjectively in man. St. James speaks of this when 



ESOTERIC THOUGHTS ON RELIGION. 425 

he says, "Religion (religio) pure and tindefiled before 
God the Father is this : to visit the fatherless and 
widows in their afflictions, and to keep himself 
unspotted from the world." And Yerrius Flaccus, 
before James, had said, " The religious man not only 
reverences the Gods, but is kind and obliging to 
men." (Deorum sanctitatemmagni aestimaus-officiosus 
adversushominus) (Festus, verb. Religiosus). Thirdly, 
The word religion is used to designate the systems of 
faith and worships adopted and used by different people 
and sects. These are the formulas and ceremonies by 
which men have endeavored to preserve and promote 
religious and moral culture in the world. They may 
often have been perverted to subserve private interests, 
avarice or ambition, but they have no doubt had a 
beneficial effect in impressing the body of mankind 
with religious convictions more or less useful. 

There is hardly a people on earth so degraded as 
not to have some religion. A recognition of some 
Superior Being who controls human affairs and whose 
favor is desirable is indigenous in the human breast. 
It seem to be the inference which the reason of man 
draws from the felt necessity of a primary cause and 
from his longing for something better, more stable 
and more just than what he sees. The notions enter- 
tained about the character of this Being, his relations 
to us, and the means of appeasing him, are as various 
as the circumstances which have surrounded the differ- 
ent races and nationalities. In all, however, the 
general idea is that of one to be worshipped, obeyed 
and propitiated. 

Without some notion of an ideal of goodness 
represented in a Superior who observes and approves 



426 MISCELLANEOUS WRITINGS. 

or disapproves our actions, it is difficult to keep up 
any sustained effort at self-improvement. The indul- 
gence of appetite, passion, dominion and ease is the 
strongest and most constant tendency of our nature. 
An innate struggle after perfection is the gift of but a 
few noble and exceptionable mortals. When they 
arise it is their mission to elevate the race. But they 
can only lead upward the common herd by pointing 
to the Divine Powers which bring the morning sun 
and the refreshing shower, the terrible thunder, the 
awful earthquake. A belief in an officious God is 
absolutely necessary to elevate and purify the masses. 

Whilst, therefore, we believe that the essence of 
religion consists in goodness, virtue, and moral perfect- 
ness, we must still recognize the ability, if not the 
necessity, of a concrete form of faith and worship for 
mankind in general. To an individual man it may 
not be necessary. A creed, a dogma, an article of 
faith is no more of the essence of religion than a prop- 
osition of geometry is such. Both may be expressions 
of abstract truth, well to know and profitable to 
believe. But whether, for example, I, as an individual, 
believe, or do not believe, in the existence of a personal 
devil, or a burning hell, does not touch my religious 
character. I may be just as religious subjectively, 
just as reverent toward God and benevolent toward 
men, with or without this belief. 

The dogmas which one religion requires us to accept 
may be nearer the exact truth than those of another ; 
and yet the purpose of religion may be better sub- 
served by the latter than the former ; though, of 
course, this would be an exceptional result. It is best 
to believe what is true, as well as desire what is good. 



ESOTERIC THOUGHTS ON RELIGION. 427 

But we must not suppose that a particular religion 
is useless or pernicious because it inculcates some 
errors. What religion is free from errors ? As no 
two religions are entirely alike in their articles of faith, 
it would be great arrogance for any one to set itself 
up as absolutely infallible. I know that the devotees 
of each think theirs is so, but no sensible or thinking 
man admits the justness of such bigoted notions. We 
will find some bad as well as some good in all religions ; 
and we will also find that almost all subserve a useful 
purpose in preserving amongst mankind a sense of 
Divine Presence, Power and Goodness, and of some- 
thing to live for superior to the sordid objects of 
vulgar life. 

But as the religions of different people in the same 
age greatly differ in the moral effects which they pro- 
duce, so it is most natural to suppose that, in differ- 
ent ages, as men rise in the scale of intelligence and 
refinement, religious ideas, as v^ell as other depart- 
ments of thought, become more elevated and enlarged. 
It cannot be that this department of human conscious- 
ness should be forever fixed in a cast-iron vesture 
incapable of development or change. The great variety 
of excellence which prevails in actual religions is 
proof to the contrar3^ 

In every other science there is progress, why should 
there not be progress in religious science ? Are we 
forever to look for our models of faith and duty in 
the patriarchs, who believed God to be the special 
guardian of Palestine and of a particular family, and 
to have corporeal limbs and features ; and who 
thought it pleasing to him to cut off the hands and feet 
of their enemies, and to rob them of their possessions 



428 MISCELLANEOUS WRITINGS. 

without provocation ? Yet we must do this if we 
accept the theory that revelation of Divine truth was 
miraculously made to these men at first hand and has 
never been made except through Hebrew prophets and 
seers. Is it not more consonant to the Divine benefi- 
cence, to its manifestations in the natural world, and 
to what we know of the facts in the progress of 
humanity itself, to look for this revelation on every 
hillside and in every valley where wells of moral purity 
and freshness have sprung up ; and in the accumula- 
tions of spiritual wisdom w^hich have been gathered 
together in all lands ? Is God the loving father of only 
a single tribe, and a stepfather to the rest of his 
creatures, or may we not rather expect the influence 
of His Spirit to be breathed upon all ? 

The same narrow theory was once applied to nature 
herself. It was boldly asserted and, indeed, not to be 
gainsaid, that all things were made by one creative 
feat about six or seven thousand years ago — stratified 
rocks, veins of ore, growing trees w^ith perfect annular 
rings, and all things else as we now see them ; and 
that the present animal and vegetable kingdoms are the 
results of direct lines of ordinary generation and ger- 
mination from the original forms ! as though creative 
energy never stirred but on a single occasion, and is 
not always in active operation, constantly producing 
by the eternal and slowly grinding mails of Omnipo- 
tence endless varieties of organism exhibited in geolog- 
cal successions of being here, and in cosmic successions 
in the regions of space. But this narrow theory of a 
six-day's creation, the logical inference of an anthrop- 
omorphic God, has given way before the strong and 



ESOTERIC THOUGHTS ON RELIGION. 429 

indelible characters of truth which are inscribed on 
every page of Nature's great Book, from the fossils of 
the earth to the flaming orbs and fading nebulae of 
heaven. 

There is in fact and in truth a strong analogy 
between the progress of material and spiritual philos- 
ophy. In the spiritual world, as in the material, it 
was but natural for the infant understanding to limit 
the first Cause and Governor of the Universe by the 
limited conceptions which it had of the Universe itself, 
and to make Him altogether such an one as man, only 
with enlarged powers and presence. No one can read 
the Book of Job without feeling that he introduced to 
the spiritual longings and gropings of a primative age, 
when the elements of known religious truth w^ere few 
and simple. He recognizes the same fact in reading 
Homer, Hesiod and the early Greek dramatists. Com- 
paring these with the luminous teachings of a Paschal, 
or Fenelon, or a Leigh ton, he would have a demon- 
stration of progressive enlargement in the scope of 
spiritual insight, and would clearly see that in religious 
things, as in scientific, the world moves. 

How prolific in spiritual discoveries and results a 
single germinal thought has often proved, evolved 
almost unconsciously, perhaps, in the sublime throes 
of a great spirit in a state of exaltation. "Do unto 
others as ye would that they should do unto you." — 
"Love is the fulfilling of the law," are instances. 
Dropping like prolific seed into the receptive conscious- 
ness of the seekers of truth, they have expanded in 
the next age into broader and more elevated views of 
life and destiny. Of this character are many of the 
utterances so sublimely expressed in the old Jewish 



430 MISCELLANEOUS WRITINGS. 

prophets. In spiritual elevation and discernment the 
Orientals, and especially the Hebrew prophets, were 
far in advance of the Greeks ; whilst the latter excelled 
in metaphysical speculation and logic. When these 
two systems of thought came in contact, each found 
excellencies in the other which could not fail to pro- 
duce useful results. It needed a seer of deep spiritual 
insight and great breadth of view, caught only by 
soaring aloft above the influences of passion and 
selfishness, to eliminate from the existing systems some 
new and better philosophy than the world had yet 
seen. The outward forms of the Jewish religion had 
become burdensome and useless. The heathen religions 
had ceased to command respect, even in their own 
seats. A new religion, more spiritual, more catholic, 
and better adapted to all forms of social life, and to 
all degrees of civilization, became a necessity of the 
advancing ages, and of the amalgamation of the 
different nationalities. Hence arose Christianity. 

The foundations of such a religion as the world then 
wanted were laid by Jesus of Galilee, aptly called by his 
followers, familiar with Jewish conceptions, Messiah, 
Christ, the Anointed or Sanctified One. He enunciated 
and strikingly enforced the great central religious 
truth — that the heart, or the spiritual centre of man, is 
the place where righteousness, or true religion, must 
begin and end. If that is right, all is right. This is 
what is meant by Faith. The life will be evolved 
accordingly. The life is, and always will be, the out- 
growth of the true inward nature. They are related 
as cause and effect and cannot be dissevered. He also 
taught the other great fundamental religious truth, 
that this inner righteousness, or true religion, consists 



ESOTERIC THOUGHTS ON RELIGION. 431 

of love — love to God and man. The essential condi- 
tion of religion, namely, sincerity, or faith, by which 
it is grounded in the inner heart of man ; and the 
essential nature of religion, namely, love ; these con- 
stituted the chief comer stones of the new religion of 
Christ. These are seminal truths, if not discovered, 
certainly placed in bold relief by Jesus of Nazareth. 

It is plain that such a religion must have involved 
antagonism to superstitious observance. But it was 
only relatively, not absolutely, hostile to observances 
and rites. It demanded to stand first, and that 
observances and ceremonies (if used) should occupy 
but a secondary place ; of no value, excepts as helps 
and aids of inward purity and holiness. 

This was Christ's great work, sealed with his 
blood. He taught no dogmas but one — that God is 
our Father and that we are all brethren. The work 
of communicating the new religion to the western 
world fell upon Paul, a scholar versed in both learn- 
ings. He became the great Apostle of the Gentiles. 
By his zeal, his learning and his prudence, he laid the 
foundations of the Christian Church as it remains to 
the present day. 

Paul adopted a few simple dogmas as the theory 
or skeleton around which he built up the Mronderftil 
structure of spiritual life and growth and moral power 
w^hich so commended Christianity to the nations, and 
so elevated them in the scale of civilization and refine- 
ment. The principal of these dogmas were the atone- 
ment and the resurrection. 

The necessity of atonement or conciliation of the 
Divine anger was so deeply rooted in the minds of all 
nations that no propounder of a new religion would 



4-32 MISCELLANEOUS WRITINGS. 

have been listened to for a moment who had not 
something of the kind to offer to sin-conscious mortals. 
Paul offered it in a way that secured the abolition of 
the old disgusting and expensive sacrifices, and, at the 
same time, an increased veneration for the founder of 
his religion. To meet the vast demands of propitia- 
tion for the sins of a world required an exaltation of 
the Person of this Founder above the state of ordinary 
humanity ; though it cannot be justly said that Paul 
taught the essential Divinity of Christ in the modem 
sense of that term. 

The resurrection was a Jewish dogma adopted not 
long before the Christian era. It supposed that men 
will rise out of their graves in bodily form, and thus 
have a renewed life. The Old Testament did not teach 
a future state. The Greeks had borrowed the idea of 
Hades and the Shades from the Egyptians, and the 
separate existence and indestructibility of the soul 
from the metempsychosis of the Brahmins. Refining 
upon these notions, they deduced the immateriality of 
the Spirit and the immortality of the soul. When the 
Greek philosophy became the basis of all learning 
among Christian scholars, this view v^^as adopted in 
connection with that of the resurrection, and is, at 
present, the prevailing doctrine of the Church. But 
Paul, a good Grecian, w^as compelled to admit that 
the body w^hich would reappear would be a " spiritual 
body," rather a contradiction in terms. 

Whatever dogmas, from time to time, may have 
prevailed as matters of voluntary or compulsory 
belief, the great central truth taught by Christ and 
reiterated and enlarged by His Apostles — that true 
religion dwells in the heart by faith, and that it con- 



ESOTERIC THOUGHTS ON RELIGION. 433 

sists of love — has never been entirely lost sight of, and 
has acted as a perpetual leaven, imparting moral life 
to the Church and to Christendom. 

Meantime, human thought has not been at a 
stand-still. Whilst endless webs of fine-spun and 
ingenious theories have been woven by theologians 
and scholars, embracing the nature and mode of 
existence of God and all things, most of which have 
been consigned to the lumber garret of oblivion, 
thoughtful minds have continued to explore the 
hidden laws of our own spiritual nature, and the 
motives and forces by w^hich it is moulded and 
swayed, and have bestowed profound study on human 
life and destin3^ As a result we have a grand system 
of true spiritual philosophy by the light of which 
we may be unerringly guided to good and noble 
ends and to the formation of good and noble characters. 
To this end, without giving ourselves up to childish 
superstitions, we may reverently study the more 
highly inspired portions of the sacred volume, espe- 
cially the Psalms, the Proverbs, the Prophets and the 
New Testament, and also the standard works of 
religious instruction and piety. To this end, also, we 
may profitably study the works of the Wise and Good 
of all ages and nations, using at all times the lights 
of reason and conscience in judging w^hat is good 
and rejecting what is bad or useless. Nor ought we 
to abandon the institutions of religions and the moral 
and religious teachings of the church. If we do not 
assent to all the theological dogmas which we hear, 
we can extract much of spiritual good ; and we must 
remember that the mass of mankind have no other 
resource for edification and comfort. We should treat 



4-34 MISCELLANEOUS WRITINGS. 

their weaknesses with tenderness and their prejudices 
with respect. It would be worse than useless to fly 
in the face of the conscientious convictions and cher- 
ished hopes of those with whom it is our lot to live. 
We should only lose their friendship and respect with- 
out conferring upon them any benefit. 

Much has been said of the efficacy of prayer. 
Those like Professor Tyndal, who considered the world 
to be governed by unchangeable laws, cannot conceive 
any advantage to arise from applications to the 
Supreme Being. But the effort made by the soul to 
lift itself up into close communion with the Almighty 
Spirit of Holiness and Purity has a purifying influence 
on the soul itself, repressive of the gross and animal 
nature, and of all pride and vain conceit, and attract- 
ing to it for the time being a portion of that sanctity 
w^hich it adores. In this, undoubtedly, consists the 
true value of prayer. I would, by all means, urge the 
continuance of this elevating and purifying exercise in 
connection w^ith the other means employed for the 
edification of the spiritual nature. 

Pursuing the course indicated, v^ith a sincere desire 
for spiritual and practical improvement, and a mind 
lifted up with a yearning for communion with that 
Divine Being who is, who must be, our loving Father 
(or he would not have created us), the soul will become 
purified and gloriously prepared for all the duties and 
trials of life and death, and for the unknown issue of 
the world to come. 

My conclusion, then, is this : God is everywhere, 
and always the same. He forms and informs all 
things visible and invisible. His creative power has 
not ceased to operate, but is working now and will 



ESOTERIC THOUGHTS ON RELIGION. 435 

always work by eternal laws. His spirit still inspires, 
and it has always inspired, elevated and spiritual souls 
with thoughts far above and beyond the reach of 
ordinary mortals. He breathes through their minds 
those Divine strains which seem like the far off harmony 
of the other worlds. But this is no greater display of 
His infinite and all-pervading energy than the growing 
of the blade of grass or the forming of the snowflake. 
It is for us to adore and love ; to be humble and trust- 
ful ; to be pure and good ; to be just and loving and 
kind. It is for us to work and labor in our lot, pro- 
ducing sunshine and gladness wherever we go. It is 
for us to love our country and to sustain its institu- 
tions and laws ; to conform as far as we can to the 
religious forms and customs which prevail and w^ith 
which v^e can best sympathize, remembering that to 
most people those things are vital supports of their 
moral nature. It is for us to build up and not to pull 
down ; to be a blessing in our day and not a curse ; 
to seek truth v^herever it is to be found, and to advo- 
cate it at all times when its advocacy will be tolerated, 
but not to allow our confidence in our opinions to 
interfere with our usefulness to others. Finally, it is 
for us, through all difficulties and temptations, to 
pursue an honorable, dignified, truthful and loving life, 
so that whenever our task is done, w^e may depart 
amidst the blessings of mankind and be remembered 
for our good deeds. 
This is my religion. 

July 4, 1876. 



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